David J. Burchell vs. Arash AminianDemurrer to ComplaintCal. Super. - 4th Dist.October 27, 2017v e a N n A W N N O N N N O N O N N N N ee em p m em em mk e k pe d pe d pe d fo NU 7 J ~ J'S J — ~ N E - 7 | T E S ' S TE SIDNEY J. MARTIN, ESQ. (SBN 140658) ELECTRONICALLY FILED smartin@schmidvoiles.com Superior Court of California, MICHAEL C. TING, ESQ. (SBN 225322) County of Orange mting@schmidvoiles.com 12/01/2017 at 12:54:00 PIM SCHMID & VOILES Clerk of the Superior Court 333 City Boulevard West, Suite 720 By Monique Ramirez, Deputy Clerk Orange, CA 92868 Tel: (714) 940-5555/Fax: (714) 940-5594 Attorneys for Defendants ARASH AMINIAN, M.D., erroneously sued and served as Arash Aminian, ALI TABATABAL, M.D., erroneously sued and served as Ali Tabatabai, and SIYAVASH FOOLADIAN, M.D., erroneously sued and served as Siyavash Fooladian SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER DAVID J. BURCHELL, | CASE NO. 30-2017-00952242-CU-MM-CJC (Dept. C25; The Honorable Sheila Fell, Presiding) Plaintiff, [Complaint Filed October 27, 2017] Vv. NOTICE OF DEMURRER AND DEMURRER ARASH AMINIAN, ALI TABATABAI, |OF ARASH AMINIAN, M.D., ALI SIYAVASH FOOLADIAN, TABATABAI, M.D., AND SIYAVASH SADDLEBACK MED, J.S. DEBARRO, |FOOLADIAN, M.D. TO PLAINTIFF'S T.D. LEWENDOWSKI, M. EVINI, COMPLAINT; MEMORANDUM OF POINTS DOES 1 TO 10, AND AUTHORITIES; DECLARATION OF SIDNEY J. MARTIN IN SUPPORT THEREOF Defendants. DATE: January 24, 2018 TIME: 2:00 p.m. DEPT: 025 Reservation No.: 72708984 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 24, 2018, at 2:00 p.m., or as soon thereafter as the matter can be heard in Department C25 of the above-entitled court, located at 700 W. Civic Center Drive, Santa Ana, CA, defendants, ARASH AMINIAN, M.D., erroneously sued and served as Arash Aminian, ALI TABATABAI, M.D., erroneously sued and served as Ali Tabatabai, and STYAVASH FOOLADIAN, M.D., erroneously sued and served as Siyavash 1 NOTICE OF DEMURRER AND DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAIL, M.D., AND SIYAVASH FOOLADIAN, M.D, TO PLAINTIFF'S COMPLAINT ee 0 a Sa nt A W N N O R N O N O N O N O N O N O N O R r m pm p m m pem ed pe d ek pe d G 0 ~~ O N wn A W N E O 8 N n A W N = D Fooladian, will demur to plaintiff DAVID J. BURCHELL's Complaint on the following grounds: FIRST CAUSE OF ACTION —- MALPRACTICE 1. To the extent the Complaint attempts to plead a cause of action for medical malpractice, it fails to state a cause of action because the elements of such a claim are not alleged. (C.C.P. §§ 430.10(e); Gami v. Mulliken Medical Center (1993) 18 Cal. App.4th 870, 877.) 2, To the extent that plaintiff attempts to assert a claim for medical malpractice, it is uncertain because moving defendants cannot ascertain what the pleader means by the facts alleged. (C.C.P. § 430.10(f); Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459-460.) 4. To the extent that plaintiff attempts to assert a claim for medical malpractice, it is uncertain and fails to state a cause of action against moving defendants because it contains insufficient charging allegations against moving defendants and the basis of liability asserted against moving defendants is unclear. (C.C.P. § 430.10(e), (f); Falahati v. Kondo (2005) 127 Cal. App.4th 823, 829.) SECOND CAUSE OF ACTION - FRAUD 4, Plaintiff's cause of action for fraud is uncertain and fails to state a cause of action because it fails to plead sufficient facts with specificity regarding each of the elements of a fraud claim. (C.C.P. § 430.10(e), (f); Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Hauter v. Zogarts (1975) 14 Cal.3d 104, 112.; Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) 5. To the extent that plaintiff attempts to assert a claim for fraud, it is uncertain because moving defendants cannot ascertain what the pleader means by the facts alleged. (C.C.P. § 430.10(f); Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459-460.) 6. To the extent that plaintiff attempts to assert a claim for fraud, it is uncertain and fails to state a cause of action against moving defendants because it contains insufficient charging allegations against moving defendants and the basis of liability asserted against moving defendants is unclear. (C.C.P. § 430.10(e), (f); Falahati v. Kondo (2005) 127 Cal. App.4th 823, 829.) 1 2 NOTICE OF DEMURRER AND DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. TO PLAINTIFF'S COMPLAINT Ww W o N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION - FALSE IMPRISONMENT % To the extent the Complaint attempts to plead a cause of action for false imprisonment, it does not allege all the elements of a false imprisonment claim and therefore fails to state a cause of action. (C.C.P. §§ 430.10(¢); Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) 8. To the extent that plaintiff attempts to assert a claim for false imprisonment, it is uncertain because moving defendants cannot ascertain what the pleader means by the facts alleged. (C.C.P. § 430.10(f); Brea v. McGlashan (1934) 3 Cal. App.2d 454, 459-460.) 9 To the extent that plaintiff attempts to assert a claim for false imprisonment, it is uncertain and fails to state a cause of action against moving defendants because it contains insufficient charging allegations against moving defendants and the basis of liability asserted against moving defendants is unclear. (C.C.P. § 430.10(e), (f); Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) FOURTH CAUSE OF ACTION - BATTERY 10. The fourth cause of action fails to state a cause of action for battery because it does not allege the elements of a battery cause of action, including but not limited to that defendant acted intentionally and that plaintiff did not consent. (C.C.P. § 430.10(¢); Piedra v. Dugan (2004) 123 Cal. App.4th 1483, 1483, 1495.) 11. To the extent that plaintiff attempts to assert a claim for battery, it is uncertain because moving defendants cannot ascertain what the pleader means by the facts alleged. (C.C.P. § 430.10(f); Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459-460.) 12. To the extent that plaintiff attempts to assert a claim for battery, it is uncertain and fails to state a cause of action against moving defendants because it contains insufficient charging allegations against moving defendants and the basis of liability asserted against moving defendants is unclear. (C.C.P. § 430.10(e), (f); Falahati v. Kondo (2005) 127 Cal. App.4th 823, 829.) 1 3 NOTICE OF DEMURRER AND DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D,, AND SIYAVASH FOOLADIAN, M.D. TO PLAINTIFF'S COMPLAINT o e 3 a N n t A W N N O O R N N N N N N N em em em e d p k pe d p d e d pe d pe d «@ NJ A N nN BE W N = D 0 d S N N E W N = © FIFTH CAUSE OF ACTION — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 13. Plaintiff's cause of action for intentional infliction of emotional distress is uncertain and fails to state facts sufficient to constitute a cause of action because it fails to sufficiently plead extreme and outrageous or intentional conduct. (C.C.P. § 430.10(¢); C.C.P. § 430.10(f); Cochran v. Cochran (1998) 65 Cal. App.4th 488, 494; Plotnik v. Meihaus (2012) 208 Cal. App.4th 1590, 1609; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App.4th 336, 340, as modified (Oct. 2, 2014), review denied (Jan. 14, 2015).) 14. To the extent that plaintiff attempts to assert a claim for intentional infliction of emotional distress, it is uncertain because moving defendants cannot ascertain what the pleader means by the facts alleged. (C.C.P. § 430.10(f); Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459-460.) 15. To the extent that plaintiff attempts to assert a claim for intentional infliction of emotional distress, it is uncertain and fails to state a cause of action against moving defendants because it contains insufficient charging allegations against moving defendants and the basis of liability asserted against moving defendants is unclear. (C.C.P. § 430.10(¢), (f); Falahati v. Kondo (2005) 127 Cal. App.4th 823, 829.) This demurrer will be based on this Notice, the attached Memorandum of Points and Authorities, matters subject to judicial notice, and on any further oral and documentary evidence that may be properly presented prior to or at the hearing. Defendants request that the demurrer be sustained without leave to amend. DATED: December 1, 2017 SCHMID & VOILES SIDNEY J. MARTIN, ESQ. MICHAEL C. TING, ESQ. Attorneys for Defendants, ARASH AMINIAN, M.D, ALI TABATABAI, M.D., and SIYAVASH FOOLADIAN, M.D. 4 NOTICE OF DEMURRER AND DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. TO PLAINTIFF'S COMPLAINT eo 8 a x nn RA W N N N N O N N N N N N ee em e m em je m p m em em e m «w w Na a nn A W O N = S O 0 d N R a W N = MEMORANDUM OF POINTS AND AUTHORITIES LL INTRODUCTION Plaintiff appears to allege claims for malpractice, fraud, false imprisonment, battery, and intentional infliction of emotional distress stemming from a below the knee amputation. But, the Complaint does not contain any charging allegations against Drs. Tabatabai and Fooladian, and does not plead each element of each cause of action. As such, the entire complaint is uncertain and fails to state a cause of action. Moving defendants’ demurrer should be sustained accordingly. I. STATEMENT OF FACTS Plaintiff David Burchell alleges that on August 5, 2016 at Saddleback Memorial Medical Center, Dr. Arash Aminian told him he needed a below the knee amputation (BKA) of the right foot. Plaintiff made clear "Defendant will not be allowed to perform an operation or procedure of any kind," and told Dr. Aminian that his podiatrist/surgeon Dr. Eric Travis was to be consulted prior to any operation or procedure. After plaintiff "refused Dr. Aminian's desire to amputate [his] right leg below knee, Defendant began plot with help of other hospital employees to mutilate and cut off blood supply to foot, that eventually led to BKA." (Complaint pgs. 4, 6.) Defendants did not notify Dr. Travis, also on staff at Saddleback. (Complaint pg. 4.) Jacqulyn S. Debarro allegedly illegally drugged plaintiff, transported him to a darkened isolated location and coerced him into signing blank consent forms. This allegedly constituted a "false imprisonment," and led to Dr. Aminian's "mutilation and battery." (Complaint pg. 5.) Plaintiff alleges that Dr. Aminian "and other defendants caused great harm by mutilating Plaintiff's right leg." (Complaint pg. 4.) He also alleges that he suffered severe emotional distress caused by defendants’ extreme and outrageous conduct. (Complaint pg. 4.) He alleges that the has suffered wage loss, hospital and medical expenses, and the loss of lower right leg (amputation) and prays for compensatory, punitive damages, and damages in the amount of $3,550,000.00. (Complaint § 11(a), (c), (g); | 14(a).) Defendants Ali Tabatabai, M.D., and Siyavash Fooladian, M.D. are named in the caption but are not mentioned in the body of the complaint. A number of causes of action are referenced in the caption and in paragraph 10, but only a single "intentional tort" cause of action is attached, 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. pt [3 ~ ~ ro |] r o ~~ ro nN = jk pt pt pk sk a i J Jt 0 ~N 1 N U hA W N = D C Ce N N A W R N =e eo oo ee 0 N n A W N which lists five torts. II. LEGAL ARGUMENT A. The Complaint is Uncertain as to What Cause(s) of Action are Alleged and How Moving Defendants are Allegedly Liable. 1. Moving defendants cannot determine what causes of action are alleged. The caption states that the action is one for battery, med malpractice, and personal injury. Paragraph 10 states the following causes of action are attached: general negligence, intentional tort, medical malpractice, malicious intent, battery, and fraud. (Complaint § 10.) But, a single cause of action for intentional tort (which instructs the pleader to "use a separate cause of action | form for each cause of action") is attached, listing the "reasons of liability" as 1) malpractice, 2) fraud, 3) false imprisonment, 4) battery, and 5) intentional infliction of emotional distress. As defendants cannot determine what causes of action are alleged, the entire complaint is uncertain. (See Brea v. McGlashan (1934) 3 Cal. App.2d 454, 459-460, stating that "[t]he objection of uncertainty does not go to the failure to allege sufficient facts. It goes to the doubt as to what the pleader means by the facts alleged.") The caption constitutes no part of the allegations or the cause of action against the defendant. (Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 829; accord, McDonough v. Waxman (1930) 103 Cal. App. 169, 173 - matters in the caption are substantively "of no importance".) Thus, moving defendants are proceeding on the assumption that the "causes of action" attempted to be pled are those listed on the single "intentional cause of action" attachment. 2. The complaint contains insufficient charging allegations Ali Tabatabai, M.D. and Siyavash Fooladian, M.D. are not mentioned by name anywhere in the Complaint. California is a fact pleading state. Code of Civil Procedure § 425.10(a) states as relevant: “A complaint... shall contain both of the following: "(1) A statement of the facts constituting the cause of action, in ordinary and concise language.” (See Blondeau v. Snyder (1892) 95 Cal. 521, 523; Jackson v. Bank of America (1986) 188 Cal.App.3d 375, 388.) The use of Judicial Council form complaints does not change this requirement; the pleader must still 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. a W N ~~ AN W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allege the ultimate facts essential to state the cause(s) of action under substantive law. (Weil & Brown [orig. authors], Cal. Practice Guide: Civil Procedure Before Trial (TRG 2017), Ch. 6-B, § 6:200, citing People ex rel. Dept. of Transp. v. Superior Court (Verdeja) (1992) 5 Cal. App.4th 1480, 1484.) The Judicial Council form tort complaints are further "not complete in themselves. Rather, they are basically shells that identify the parties, and allege proper venue, etc. To state a cause of action, plaintiff must attach one or more cause-of-action pages. These cause-of-action pages contain the charging allegations (“ultimate facts”) relevant to the particular case." (Jd. at § 6:202.) A complain with no allegations of wrongdoing on the part of a named defendant such as Drs. Tabatabai and Fooladian fails to state a cause of action. In Falahati v. Kondo (2005) 127 Cal. App.4th 823, the plaintiff failed to include the named defendant Kondo in any charging allegations within the body of the operative complaint. The appellate court stated: "The third amended complaint plainly fails to state a cause of action against Kondo because it does not allege any conduct on his part caused any harm, loss or damage on the plaintiffs’ part." (Id. at 829.) The vague allegations attempting to fault the "defendants" do not assert liability as to these defendants. (Complaint page 4.) The Fi alahati Court explained in language directly applicable here that plaintiff's boilerplate agency allegations coupled with generic charging allegations as to "defendants and each of them" were insufficient to state a cause of action against the defendant "because he is nowhere mentioned in the body of the complaint." (/6id,) The Complaint fails to state a cause of action for the same reasons. Thus, because the complaint contains no facts and no charging allegations relative to Drs. Tabatabai and Fooladian, the basis for liability asserted against them is unclear, subjecting the Complaint to a demurrer for uncertainty and failure to state a cause of action. (C.C.P. § 430.10(e); C.C.P. § 430.10(f); Brea, 3 Cal. App.2d at 459-460; Falahati, 127 Cal.App.4th at 829; Berger v. California Ins. Guar. Ass'n (2005) 128 Cal. App.4th 989, 1006.) I" I 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAIJ, M.D., AND SIYAVASH FOOLADIAN, M.D. j— N O N R N R N N N R N N e m e d em e m m d e d p d em GC 0 AN bh W N E S NO W N N N RA W N = o eo ee a aN nn AR W N B. Plaintiff Has Not Alleged Sufficient Facts to Constitute a Medical Malpractice Claim. A claim for medical malpractice requires that the plaintiff establish "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." (Gami v. Mulliken Medical Center (1993) 18 Cal. App.4th 870, 877, citations omitted.) The Complaint does not allege that any defendant owed plaintiff a duty, that such duty was breached, or any causal connection between the breach and injury. As such, no claim for negligence is stated against any defendant. C. The Complaint Fails to Allege the Elements of Fraud with the Requisite Specificity. Not only are the elements of fraud not stated, but there is such a lack of specificity that defendants cannot determine what the alleged "fraud" is. The elements of a general fraud claim are "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Each element must be pled specifically; "general and conclusory allegations do not suffice." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74.) This means that the complaint must plead facts, not conclusions, that "show how, when, where, to whom, and by what means the representations were tendered." (Lazar, 12 Cal.4th at 645, quoting Stansfield, 220 Cal.App.3d at 73.) The Complaint alleges only that all defendants did not consult plaintiff's podiatrist. (Complaint pg. 4.) It does not allege what false representation was made or what material fact was concealed or not disclosed. It does not state who made this representation or nondisclosure, that each defendant had knowledge of the representation's falsity or an intent to induce reliance, that plaintiff justifiably relied on this statement or lack of statement, or that he suffered damages as a result. Without these specific facts, no fraud claim is stated. I 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAL M.D., AND SIYAVASH FOOLADIAN, M.D. No 0 0 3 A N i n RA W N N O N M N N N N N N e m em pe md pe d pe d ed em e m ow ~~ S N UN E W N = So O e a NN i BR W N =e D. Moving Defendants are Not Alleged to Have Falsely Imprisoned Plaintiff. The false imprisonment allegations appear to be against Jacqulyn S. Debarro and Marina Evini, not Drs. Tabatabai, Fooladian, and Aminian. (Complaint pg. 4.) Without any charging allegations, these defendants cannot determine how they can be liable for false imprisonment, rendering the claim uncertain. And, false imprisonment is the “nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715, cits. omit.) Each of these elements is not alleged. For all these reasons, no cause of action for false imprisonment is alleged against these defendants. E. There are No Allegations to Support a Battery Claim. It is unclear from the allegations whether the claim is that plaintiff did not consent to (1) one of the defendants performing the procedure, (2) the procedure being performed without first consulting with Dr. Travis, or (3) the procedure being performed at all. As such, any battery cause of action is uncertain. If the claim is that plaintiff did not consent to one of the defendants being involved in the procedure, it is one for lack of informed consent, which sounds in negligence, not battery. In medical malpractice cases, a physician's failure to obtain informed consent can give rise to a negligence claim or a battery claim. A negligence claim arises “[i]f the patient consents to a procedure without being informed of all the known risks.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.) Only if a doctor obtains consent for one surgery but performs a different surgery is a battery claim present. (/bid.) Where the claim is that there was an undisclosed element or complication of the consented-to surgery, the claim sounds in negligence. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1496.) Under this theory, the claim is that there was an undisclosed element of the procedure: an unnamed doctor's involvement. As such, the claim is not one for battery, but for lack of informed consent, which sounds in negligence. Even if the claim is that plaintiff did not consent to the procedure under any circumstances, the elements of such a claim are not pled. To establish a claim for civil battery, 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. eo 0 a N nn A W N E E [ E T E E C E 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the plaintiff must prove: (1) the defendant intentionally acted in a way which resulted in a harmful or offensive contact with the plaintiff; (2) the plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. (Piedra, 123 Cal. App.4th at 1483, 1495; emphasis added.) For a plaintiff to plead a viable claim for medical battery, he must allege that defendants intentionally violated or disregarded his consent, or that they treated him knowing that he did not consent to any treatment. There are no such allegations here. And, there are no allegations that defendants acted intentionally to harm plaintiff. The facts do not establish a battery claim under any theory. The only allegation under the battery heading is that Dr. Aminian "and other defendants caused great harm by mutilating Plaintiffs right leg." (Complaint page 4.) The unsupported allegation under the "Malpractice" heading that "all Defendants started a deliberate plot to mutilate Plaintiff's leg without consent" further does not meet these elements. As there are insufficient allegations to plead a battery claim, the demurrer should be sustained. F. Intentional Infliction of Emotional Distress is Not Pled. A cause of action for intentional infliction of emotional distress (IIED) requires a showing of "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Plotnik v. Meihaus (2012) 208 Cal. App.4th 1590, 1609.) The first element requires that the alleged conduct be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494, citations omitted.) Generally, conduct may be actionable where "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal. App.3d 931, 936, cit. omitted.) A demurrer to an IIED claim may be sustained on the ground that the defendant's alleged conduct was not sufficiently outrageous. (Cochran, 65 Cal. App.4th at 494.) The Complaint does 10. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D, AND SIYAVASH FOOLADIAN, M.D. eo 9 0 Na A Un A W N = N O R N O N O N N N N R N re p m mk em em e m e m e m 0 ~~ A Un A W N = O N e N N R W W N = not, as a matter of law, allege conduct that is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." The cause of action is supported only by generalized conclusions and not any specific allegations of any conduct by moving defendants that was specifically designed to cause emotional distress. As such, no [IED cause of action is stated. IV. CONCLUSION Moving defendants, ARASH AMINIAN, M.D, erroneously sued and served as Arash Aminian, ALI TABATABAI, M.D., erroneously sued and served as Ali Tabatabai, and SIYAVASH FOOLADIAN, M.D., erroneously sued and served as Siyavash Fooladian respectfully request that their demurrer to plaintiff's Complaint be sustained, as the entire complaint is uncertain as to what causes of action are alleged against which defendants, and the elements of each potential claim are not pled. And, there are no charging allegations against Drs. Tabatabai and Fooladian. DATED: December 1, 2017 SCHMID & VOILES SIDNEY J. MARTIN, ESQ. MICHAEL C. TING, ESQ. Attorneys for Defendants, ARASH AMINIAN, M.D., ALI TABATABAI M.D., and SIYAVASH FOOLADIAN, M.D. 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI M.D., AND SIYAVASH FOOLADIAN, M.D. No 0 3 a N n n RAR W N N O N N N N N N N N p e e m p d em em em j m mk je m 0 1 a Wn Aa WwW N = S e e e a S N A W N = e DECLARATION OF SIDNEY J. MARTIN I, SIDNEY J. MARTIN, declare: 1. I am an attorney at law duly licensed to practice in the State of California and I am associated with Schmid & Voiles, attorneys of record for defendants, ARASH AMINIAN, M.D, ALI TABATABAI M.D., and SIYAVASH FOOLADIAN, M.D. I have personal knowledge of the facts set forth in the declaration, and if called as a witness, I could and would competently testify thereto. 2. I reviewed the allegations in the complaint and in my opinion, it was appropriate to file a demurrer. Defendants’ response to the complaint is due on December 1, 2017. 3. I attempted to contact plaintiff to meet and confer regarding the proposed demurrer more than 5 days before a response to the operative complaint was due. On November 7,2017, I sent plaintiff a letter to meet and confer regarding the demurrer and detailing the complaint's deficiencies in accordance with the requirements of Code of Civil Procedure section 430.41(a)(1). 4, On November 13, 2017, I met and conferred telephonically with plaintiff in pro per regarding the perceived deficiencies in the complaint, as discussed in my letter. Plaintiff did not wish to amend the Complaint. Our meet and confer was carried out in good faith. We did not reach an agreement resolving the objections raised in the demurrer. I declare under penalty of perjury under of the laws of the State of California that the foregoing is true and correct. Executed on December 1, 2017. x dee) bai SIDNEY J. MARTIN, Declarant 12 DECLARATION OF SIDNEY J. MARTI N SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D, ALI TABATABAI, M.D., AND SIYAVASH FOOLADIAN, M.D. N o e x S N nn BR W N N O O N O N N O N O R N N N N em em em ed p m ed es em je m 0 ~~ S N Wn RA W O N = D Ne N N N RA W R N =e 2 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 December 1, 2017, I served the foregoing document described as: NOTICE OF DEMURRER AND DEMURRER OF ARASH AMINIAN, M.D., ALI TABATABAI, M.D, AND SIYAVASH FOOLADIAN, M.D. TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SIDNEY J. MARTIN IN SUPPORT THEREOF on the interested parties in this action by placing a copy thereof addressed as follows: David J. Burchell In Pro Per 19 Windflower Aliso Viejo, CA 92656 By US Mail [CCP §§1013(a);1013a] I placed a sealed envelope with postage thereon fully prepaid for deposit with the United States Postal Service by placing it for collection and mailing at my business address on the date stated, following the firm's ordinary business practice. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day after the date of deposit for mailing in the affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed December 1, 2017, at Orange, California. A : =J% 7 a TARA LOPEZ ~ / LL LA p A Type or Print Name Signature L J 13 DECLARATION OF SIDNEY J. MARTI N SUPPORT OF DEMURRER OF ARASH AMINIAN, M.D, ALI TABATABAI, M.D,, AND SIYAVASH FOOLADIAN, M.D.
