Yen Hoang Do vs. Ace Dental office of Dr. Richard Hoang Dds, IncMotion to DismissCal. Super. - 4th Dist.December 22, 2017O O 0 N N S N n n k A W N = N N N N N N N N N / m m m e m e m e m e m e m e m © N N N L n B R W L W N R D O Y N R W N = O o MARK L. KIEFER, ESQ., SB# 116633 ROYCE Y. HUANG, ESQ., SB# 285136 ERICKSEN ARBUTHNOT 835 Wilshire Blvd., Suite 500 Los Angeles, CA 90017-2603 (213) 489-4411 (213) 489-4332 Fax Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE YEN HOANG DO, Plaintiff, VS. ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC., RICHARD HOANG DDS, and MYLOC NGUYEN, DDS. Defendants. N a r N r ” N a r ” N a e N a e N a r N a N e ? N v N a a N e e N a t ’ N a e N a a a a a N a t a g a “ s a t s ’ s a s ’ s e a m e ’ CASE NO.: 30-2017-00963295-CU-MM-CIC Complaint filed: 12/22/17 Trial date: None Assigned to: Hon. David Chaffee Dept. C20 DEFENDANTS RICHARD A. HOANG, D.D.S. AND RICHARD A. HOANG D.D.S., INC. DBA ACE DENTAL OFFICE’S MOTION TO DISMISS THE ACTION, WITH PREJUDICE, FOR PLAINTIFF’S FAILURE TO FILE AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF ROYCE Y. HUANG, ESQ. Date: August 17,2018 Time: 9:30 a.m. Dept.: C20 RESERVATION #: 72845614 TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 17, 2018 at 9:30 a.m. in Department C20 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE 1 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF’S FAILURE TO FILE AMENDED COMPLAINT w m b h W N N e N e 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) (collectively “Defendants™) will and hereby move this Court for an order dismissing this action, with prejudice, for Plaintiff YEN HOANG DO’s failure to file an amended complaint. This motion will be based upon Code of Civil Procedure § 581(f)(2) on the grounds that this Court sustained Defendants’ demurrer to Plaintiff's first amended complaint (“FAC”) with 10 days leave to amend on June 22, 2018 and that Plaintiff has failed to file another amended complaint within the time allowed (i.e., by July 2, 2018) and therefore this action must be dismissed. This motion is based upon this notice, the attached memorandum of points and authorities, the declaration of Royce Y. Huang, Esq., the court files and records herein and upon such other oral and documentary evidence as may be presented at the hearing of this motion. DATED: July 9, 2018 ERICKSEN ARBUTHNOT ROYCE Y. HUANG, ESQ. Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) 2 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF’S FAILURE TO FILE AMENDED COMPLAINT O o 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On December 22, 2017, Plaintiff YEN HOANG DO,in pro per, filed the instant action against Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) (collectively “Defendants™) and Myloc Nguyen, DDS,alleging causes of action for: (1) personal injury; (2) medical malpractice/negligence; (3) intentional infliction of emotional distress (“IIED”); (4) negligent infliction of emotional distress (“NIED”); and (5) breach of professional doctor/patient relationship. On April 6, 2018, Defendants’ demurrer to Plaintiff's original complaint was sustained with leave to amend. On April 16, 2018, Plaintiff filed a first amended complaint (“FAC”) against the same defendants, alleging causes of action for: (1) medical malpractice/negligence; (2) ITED; (3) NIED; and (4) violation of California Health & Safety Code §§ 123100, ef seq. On Friday, June 22, 2018, Defendants’ demurrer to Plaintiff's FAC was heard. All parties were present at the hearing, including Plaintiff. The first cause of action for medical malpractice/negligence, third cause of action for NIED, and fourth cause of action for violation of California Health & Safety Code §§ 123100, er seq. were all sustained without leave to amend. The second cause of action for IIED was sustained with 10 days leave to amend. On Monday, June 25, 2018, Defendants served all parties with the notice of the Court’s ruling. Plaintiff has failed to file another amended complaint within the time allowed (i.e., by July 2, 2018). On July 5, 2018, Defendants applied ex parte to dismiss this action for Plaintiff's 3 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failure to amend pursuant to Code of Civil Procedure § 581(f)(2)! and California Rules of Court, Rule 3.13202. However, the Court denied Defendants’ ex parte application without prejudice to a noticed motion. When defense counsel had provided timely notice of the ex parte application to Plaintiff via telephone on July 4, 2018, Plaintiff told defense counsel that she understood that she had 10 days leave to amend and had planned to seek help, but failed to do so. She also stated that there was nothing else that she could add to her FAC (which this Court has found to be defective). IL THE COURT MUST DISMISS THIS ACTION, WITH PREJUDICE, FOR PLAINTIFF'S FAILURE TO FILE AN AMENDED COMPLAINT AFTER THE COURT SUSTAINED DEFENDANTS’ DEMURRER WITH LEAVE TO AMEND Pursuant to the Code of Civil Procedure § 581(f)(2), an action may be dismissed as to a defendant when, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the Court and either party moves for dismissal. (Code of Civil Procedure § 5S81(f)(2).) Dismissal of an action under Code of Civil Procedure § 581(f)(2) for failure to amend a complaint within the time allowed by the Court is required. (See Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 795; Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.) The dismissal must be made with prejudice. (See Cano v. Glover (2006) 143 Cal.App.4th 326, 330.) Here, on April 16, 2018, Plaintiff filed a FAC against Defendants, alleging causes of action for: (1) medical malpractice/negligence; (2) IIED; (3) NIED; and (4) violation of California Health & Safety Code §§ 123100, et seq. On Friday, June 22, 2018, Defendants’ demurrer to Plaintiff’s FAC was heard. ! Code of Civil Procedure § 581(f)(2) states: “The court may dismiss the complaint as to that defendant when ... after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” 2 California Rules of Court, Rule 3.1320 states: “A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).” 4 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT O o 0 3 O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All parties were present at the hearing, including Plaintiff. The first cause of action for medical malpractice/negligence, third cause of action for NIED, and fourth cause of action for violation of California Health & Safety Code §§ 123100, et seq. were all sustained without leave to amend. The second cause of action for IIED was sustained with 10 days leave to amend. On Monday, June 25, 2018, Defendants served all parties with the notice of the Court’s ruling. Plaintiff has failed to file another amended complaint within the time allowed (i.e., by July 2, 2018). On July 5, 2018, Defendants applied ex parte to dismiss this action for Plaintiff’s failure to amend pursuant to Code of Civil Procedure § 581(f)(2) and California Rules of Court, Rule 3.1320. However, the Court denied Defendants’ ex parte application without prejudice to a noticed motion. When defense counsel had provided timely notice of the ex parte application to Plaintiff via telephone on July 4, 2018, Plaintiff told defense counsel that she understood that she had 10 days leave to amend and had planned to seek help, but failed to do so. She also stated that there was nothing else that she could add to her FAC (which this Court has found to be defective). Therefore, since Plaintiff has failed to amend within the time allowed by this Court, this action must be dismissed with prejudice. 7 1 11 11 1 11 1 1 11 5 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT W N O o 0 a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court grant their motion for an order dismissing this action, with prejudice, for Plaintiff’s failure to file an amended complaint. DATED: July 9, 2018 ERICKSEN ARBUTHNOT we FELL MARK L. KIEFER, ESQ. ROYCE Y. HUANG, ESQ. Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) 6 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFFS FAILURE TO FILE AMENDED COMPLAINT DECLARATION N O 0 a d O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ROYCE Y. HUANG, ESQ. I, Royce Y. Huang, Esq., declare as follows: 1. I am an attorney at law duly licensed to practice before all the Courts of the State of California and am an associate with the law offices of Ericksen Arbuthnot, attorneys of record for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) (collectively “Defendants”). The matters set forth in this declaration are based upon my own personal knowledge and,if called as a witness, I would and could competentlytestify hereto. 2. On December 22, 2017, Plaintiff YEN HOANG DO, in pro per, filed the instant action against Defendants and Myloc Nguyen, DDS, alleging causes of action for: (1) personal injury; (2) medical malpractice/negligence; (3) intentional infliction of emotional distress (“IED”); (4) negligent infliction of emotional distress (“NIED”); and (5) breach of professional doctor/patient relationship. 3. On April 6, 2018, Defendants’ demurrer to Plaintiff’s original complaint was sustained with leave to amend. 4. On April 16, 2018, Plaintiff filed a first amended complaint (“FAC”) against the same defendants, alleging causes of action for: (1) medical malpractice/negligence; (2) IIED; (3) NIED; and (4) violation of California Health & Safety Code §§ 123100, er seq. Attached hereto as Exhibit “A” is a true and correct copy of Plaintiff's FAC. 3. On Friday, June 22, 2018, Defendants’ demurrer to Plaintiff’s FAC was heard. All parties were present at the hearing, including Plaintiff. The first cause of action for medical malpractice/negligence, third cause of action for NIED, and fourth cause of action for violation of California Health & Safety Code §§ 123100, ef seq. were all sustained without leave to amend. The second cause of action for IIED was sustained with 10 days leave to amend. Attached hereto as Exhibit “B”is a true and correct copy of Defendants’ demurrer to Plaintiff’s FAC. 7 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT w n h s W N oO o X k 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. On Monday, June 25, 2018, Defendants served all parties with the notice of the Court’s ruling. Attached hereto as Exhibit “C” is a true and correct copy of the notice of ruling. 7. Plaintiff has failed to file another amended complaint within the time allowed (i.e., by July 2, 2018). 8. On July 5, 2018, Defendants applied ex parte to dismiss this action for Plaintiff's failure to amend pursuant to Code of Civil Procedure § 581(f)(2) and California Rules of Court, Rule 3.1320. However, the Court denied Defendants’ ex parte application without prejudice to a noticed motion. When defense counsel had provided timely notice of the ex parte application to Plaintiff via telephone on July 4, 2018, Plaintiff told defense counsel that she understood that she had 10 days leave to amend and had planned to seek help, but failed to do so. She also stated that there was nothing else that she could add to her FAC (which this Court has found to be defective). I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this 9 day of July, 2018,at Los Angeles, California. AROYCE Y. HUANG, ESQ. 8 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT FXHIRIT “A” 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 en Hoang Do 4592 Sheffield St estminster, CA 92683 14) 716-3365 laintiff IN PRO PER I™ HOANG DO, Plaintiff S$ ICHARD HOANG D.D.S., INC., ICHARD HOANG, D.D.S., YLOC NGUYEN, D.D.S,, Defendants SUPERIOR COURT OF THE STATE OF CALIFORNIA led CXC17 us cord COUNTY OF ORANGE ) AMEND?COMPLAINT Case No. 30-2017-00963295 COMPLAINT FOR COMPENSATORY DAMAGES FOR: MEDICAL MALPRACTICE/NEGLIGENCE 2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 3. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 4. VIOLATION OF CALIFORNIA HEALTH AND SAFETY CODE § 123100, ET SEQ; = DEMAND FOR JURY TRIAL O O 0 0 ~ ~ O N W h = ~ Ww W D N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF YEN HOANG DO COMPLAINS OF DEFENDANTS RICHARD HOANG, D.D.S. INC., RICHARD HOANG, D.D.S, MYLOC NGUYEN D.D.S, INCLUSIVE, AND EACH OF THEM, AND ALLEGES AS FOLLOWS: 10. INTRODUCTION This lawsuit involves a claim for medical malpractice/negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of California Health and Safety Code §123100, against medical providers who provided care for Plaintiff YEN HOANG DO (“Plaintiff”) between approximately April, 2015 through December, 2016. PARTIES Plaintiff, and at all times herein mentioned,is resident of the City of Westminster, County of Orange, State of California. At all times herein mentioned, Defendant DR. RICHARD HOANG (herein after referred to as DR. HOANG)is and was a dentist licensed to practice dentistry underthe laws of the State of California and was engaged in the practice of dentistry in the City of Westminster, State of California. ‘ At all times herein mentioned, Defendant DR. MYLOC NGUYEN (herein after referred to as DR. NGUYEN) is and was a dentist licensed to practice dentistry under the laws of the State of California and was engaged in the practice of dentistry in the City of Westminster, State of California. RICHARD HOANG, D.D.S., Incorporated, is a business organization with their principle place of business at ACE DENTAL 9200 Bolsa Ave. #209 Westminster, CA 92683. At all times herein mentioned, Plaintiff is informed and believe and based upon such information and belief thereon allege that Defendants, and each of them, were the agents, employees and servants of each other and/or of Defendant DR. HOANG and were acting within the course and scope of said agency, employment or service, and with the permission and consent of each other Defendants in performing the acts complained of herein below. Plaintiff is informed and believes and, based on such information and belief, alleges that at all times herein mentioned, each of the Defendantsratified and approved the acts, omissions, representations, and otheractivities of each and every other Defendant. Theallegations of this compliant stated on information and belief are likely to have evidentiary support and after a reasonable opportunity for further investigation or discovery during the pendency of the action herein. FACTS BASIC TO ALL CAUSES OF ACTION Plaintiff repeat, re-allege and incorporate by reference Paragraphs 1 through 8, inclusive, herein above, as though fully set forth herein. On April 22, 2015, Plaintiff YEN HOANG DO was awed by the electronic visual displays of beautiful teeth outside of ACE DENTAL, presumably the work done by Defendant DR. HOANG. S WO W 0 N N N W R x W N N N N N D N N N R e e 11. 12. 13. 14. 15. 16. 17. PLAINTIFF then later entered into an agreement with Defendant DR. HOANG wherein Plaintiff employed DR. HOANG to examine her teeth, consult with her in regard to the procedure to improve the color and clarity of her teeth, and to ultimately perform a procedure upon Plaintiff's teeth which was represented by Defendant DR. HOANG. Defendant DR. HOANG did examine and consult with Plaintiff about the procedure to improve Plaintiff's teeth. Defendant DR. HOANG handed Plaintiff sample veneers to choose from. Plaintiff said she loved how natural they looked and held the sample up to a mirror and said she wanted this translucency and natural incisor edges, and gave a preliminary shade choice, to be custom-matched to her own teeth later. Defendant DR. HOANG suggested to do all teeth but Plaintiff agreed to do eight upper teeth so the colors would all match when visible. On the same day, April 22, 2015, Defendant DR. HOANG did in fact initiate the procedure in giving PLAINTIFF veneers. Defendant DR. HOANG took x-rays, photos of Plaintiff's pre-operated teeth, and proceeded to grind down her teeth. Plaintiff asked for a mirror and to her immediate dismay, her teeth were shaved down to pegs with huge spaces between them even though Plaintiff simply requested to only change the color but was so shocked that he shaved down so much. Plaintiff didn’t display anger/outrage, just a slight shock in disbelief, but calmly let Defendant DR. HOANG finish his work. After prepping Plaintiff's teeth, Defendant DR. HOANG took an impression of her preps to send to the lab and told her to wait 2 weeksfor the lab to fabricate the veneers. He said Plaintiff can look at the color and decide if she is happy before he makes all of them and cement. Plaintiff's exposed dentin and newly sensitive teeth were to then be covered for 2 weeks with an acrylic resin material to which Defendant DR. HOANG sends over to Defendant DR. NGUYEN. Defendant DR. NGUYEN places a soft gel material onto Plaintiff's teeth one-by-one covering all exposed surface area which is the front,sides, and the backside. The material was then cured and hardened with a high intensity low- wavelength blue curing light which takes about 1-2 minutes of curing time per tooth. This temporary veneer stays secure in place for anywhere between 1 day to 3 weeks and falls off from chewing or on its own. When it falls off, Plaintiff is left with very unsightly and sensitive teeth to which she has to come back to replace/redo them. Sometimes she comes back immediately and wait patiently to be seen in-between patients. Sometimes she waits until her next appointment for veneer color try-in, which is typically 2 weeks. On the first 2 weeks back, Defendant DR. HOANG gave Plaintiff giant paper-white monochromatic Halloween-look-a-like full set of veneers and asked her as a joke if she liked them. He was adamant that he is not joking and asked her again if she liked them to which she said no this is nothing like the teeth he showed her on day 1. He was very persistent that these veneers were what she wanted. Plaintiff was frustrated that Defendant DR. HOANG kept joking when she just wanted to move on with her life. Veneers on average takes 2-3 visits. This was the second visit and DEFENDANT DR. HOANG was already wasting time. Plaintiff gave Defendant DR. HOANG the benefit of the doubt because she thought since this was beyond hideous that the next one would be perfect as an office strategy of some sort. She simply said no then Defendant DR. HOANG proceeded to say Plaintiff has to come back in two weeks. Plaintiff already lost 2 precious weeks of her time by Defendant DR. HOANG’s outrageous conduct and lack of professionalism and total disregard for patient outcome. 3 N O 0 N N W n d D W N N N N N N N N D m m e m e m —_ — p m 18. 19. 20. 21. 22. 23. 24. Plaintiff came back to see Defendant DR. HOANG many times from the temporaries falling off and Defendants having to get them put back on. Sometimes Defendant DR. HOANG does them, other times he only discusses veneer progress and has Defendant DR. NGUYEN do them, Sometimes Plaintiff would wait months before coming back despite them mostly all falling off, depending on how busy she was with personal obligations and work and being out of town. When they fall off, she is left with extremely sensitive teeth to which she cannot eat, drink, or talk as even air made her shaved teeth sensitive. She also cannot talk because of the huge spaces in between all her 8 upper teeth. Despite a perpetual disagreement on the shades, Defendant DR. HOANG kept saying his lab technician will come by to color match the teeth but never scheduled a time for Plaintiff to see the lab technician either in the office or have Plaintiff go directly to the lab, as most all dentists do and is in the best interests of the patients. Defendant DR. HOANG kept plaintiff in a state of false imprisonment over the atrocious look of her teeth and having to come back to his office, and later on as Plaintiff learns, exposed to harmful material without consent and would not consent had she known she would be subjected to such danger without being protected. This risk was not mentioned to PLAINTIFF at any time, written or oral. On December 23, 2015, Plaintiff came back after having been out of town for months. By this time all her temporaries had already fallen off and the New Year and holidays were approaching. Plaintiff came to the office. Defendant DR. HOANG again showed her a shade that was the same as the last shade he showed her already before and Plaintiff told him repeatedly this is not the one she selected, still maintaining a calm composure. Defendant DR. HOANGsaid the lab is making a really nice shade and to come back after the holidays and see him again. He then sent Plaintiff, as usual, over to DR. MYLOC NGUYEN to put temporary acrylic resin on her teeth. Because all of the veneers had fallen off, DEFENDANT DR. NGUYEN would have to redo all of them and it would be a long and tiresome duty. This was approximately Plaintiff's 10™ time back to redo temps and a shadestill has not been selected and a lab technician still not scheduled to custom shade her teeth even though DEFENDANTS said there would be one. Despite being annoyed with having to come back to see DR. HOANG over and over, Plaintiff maintained trust in his reassured statement that when she comes back after the holidays she would have perfect teeth ready. Atthis point, PLAINTIFF really just wanted to cover her teeth up and leave for the remainder of the year so she didn’t say anything further. When Plaintiff was passed over to DR. NGUYEN, DR. NGUYEN seemed extremely unenthusiastic since this had been the nearly 10* time she had to replace temps on. She was so bored and so was PLAINTIFF so PLAINTIFF sat there relaxed and let her do whatever she needed to do on behalf of DR. HOANG and at her own experienced and professional duty. PLAINTIFF sat in the chair, with DR. NGUYEN to the right of PLAINTIFF. DR. NGUYEN did not work with another dental assistant, it was all her. Because this was the nearly 10t" time having to do this yet again, DEFENDANT DR. NGUYEN didn’t take full precaution any longer. It was as if it's another mundane procedure that had been repeated over and over so she no longer cared nor did she care to talk to PLAINTIFF as if to make PLAINTIFF seem like at fault and a nuisance. DR. NGUYEN did her work as if she was about to fall asleep of boredom through unnecessary repetition. C O 3 A N n m b h W N O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25. 26. 27. 28. 29. 30. 31. 32, DR. NGUYEN just wentstraight to putting resin on PLAINTIFF'S teeth and curing it and failed to properly set up patient trays and failed to realize that PLAINTIFF'S eyes were not protected despite PLAINTIFF being in the chair for 30 minutes---a much longer than usual time of redoing only 1-2 temps in the past. DR. NGUYEN breached her doctor-patient duty when she negligently failed to protect PLAINTIFF'S eyes with mandatory safety goggles despite knowing the dangers of intense light exposure, nor did she give warning or consent to PLAINTIFF that she was going to hold the instrument directly straight into her bare eyes/face (Dangers of blue light are discussed over and over in dental school since dentists encounter them on a regular basis, with clear rules about distance and time factors which no one should forget). PLAINTIFF remembers the light being very brightly in her face because at times the way DR. NGUYEN was holding it...it was at an angle that hit PLAINTIFF'S eyes directly. PLAINTIFF closed her eyes and opened periodically, mostly to see why she was taking so long and kept messing up and why the light was on for almost 3 times the usual and still hadn't clicked off. This wasa different light as PLAINTIFF remembers....it was a white coiled version that was bulky and louder. DR. NGUYEN held the light very close to PLAINTIFF'S eyes in multiple angles because entire surfaces had to be cured several minutes with each tooth. The procedure also took longerin addition to already being longer than usual because DEFENDANT DR. NGUYEN redid multiple teeth multiple times after failing to get them on, and therefore PLAINTIFF sat in the chair for well past half an hourall while her eyes were exposed to dangerous blue light and DEFENDANT failing to notice and intervene. Blue light is harmful even in seconds,let alone piercing through PLAINTIFF'S eyes into her retina for well over 30 minutes. There have been reports of people experiencing blurry vision byjust looking at harmful light for a few seconds. Labrie D,et. al, warns that blue light is harmful for as little as 6 seconds at a distance of 30 cm, which is nearly equal to DEFENDANTS’S working distance. The light was about 3 inches from PLAINTIFF'S eyes for 30 minutes. The danger was increased multiple-fold. Not only that, because of having to cure the teeth at multiple angles, DEFENDANT at times had to point the instrument directly in PLAINTIFF'S eyesto cure the temps in multiple surfaces. This is no longer scattered light but direct and intensified. Light travels straight so a person periodically exposed to surrounding scattered light or the person seeing it dispersed from the opposite direction would not be harmed as much as the person who receivesit directly and centered. The intensity is unknown but is like comparing 5 to 100. Normal patients in the course of treatment likely wouldnt be exposed to all these factors of harm as PLAINTIFF had been, due to DEFENDANT'S negligence and below standard of care and at her own careless method. A lay person who sees someone picking up said instrument and staring at it would automatically alert them this doesn’t look right and is potentially dangerous. DEFENDANT DR. NGUYEN,a trained dentist and professional, failed to be alerted when she was sitting there for 30 minutes DOING ABSOLUTELY NOTHING but wait for the light to click off as she shined the instrument in PLAINTIFF's bare face and eyes, uncovered. Plaintiff later learns that all her dentists makes the temps on the outside and only shines a little light on the upper surface at 90 degrees for a few seconds before glueing them on. DEFENDANTdid all of the temps from scratch INSIDE PLAINTIFFS mouth and cured it surface by surface in the same manner. Had PLAINTIFF known her eyes would be exposed in such manner without care and protection over usual time-limits and below 5 O O O0 0 1 A N L n b w N N N N N N N N N N = m e e s e m e m 33. 34. 35. 36. 37. 38. 39. standard and precaution PLAINTIFF would not have consented to do the procedure and improve her smile at the expense of having her eyesirradiated and damaged by Defendant's outrageous and callous conduct. The very next day PLAINTIFF started experiencing blurry vision and knew something did not seem right and initially thought it was because of her contacts. Atfirst she thought she had “oily eyes” or dirty contacts and kept washing and changing her contacts but still saw blurriness. PLAINTIFF immediately knew it might have been a result of yesterday's procedure since she had never experienced anything like this. She started feeling extremely nauseousas she thought she was going blind in her only good eye. She immediately held onto hope that it was just dirty lens and that it would disappear after a few hours or days. She was in extreme denial that her dentist had caused this to her. When it didn’t get better after 1-2 days which seemed like an eternity, PLAINTIFF started panicking and called in to make an appointment with her optometrist. She wanted the optometrist to reassure her that it was nothing as she was feeling so nauseous by now knowing for sure it came from the blue light exposure due to proximity. PLAINTIFF immediately called into Nhan Hoa Clinic in Garden Grove to schedule an appointment for the next available date to see the optometrist. When PLAINTIFF saw her optometrist, Dr. Nancy Dang, on 12/29/15, PLAINTIFF said that she has blurry vision and Dr. Dang immediately looked into her eyes and told her she has a PVD - a posterior vitreous detachment, something PLAINTIFF never heard of or was diagnosed with ever before. Again, PLAINTIFF was so sure it came from the excessive blue light exposure directly onto her eyes from a few days before. PLAINTIFF briefly told Dr. Dang that she was at her dentist and was exposed and asked her what she thought to which she only said no and continued her work without much further discussion. PLAINTIFF was so scared of this diagnosis she just wanted them to take necessary steps to treat her or refer her out to a specialist that PLAINTIFF didn’t ask further about the blue light. Day after day PLAINTIFF started seeing her vitreous peeling away from her eyes and the blurriness started changing shapes and sizes day by day as if water wasrippling over a wall. It was a very slow process but because it lied directly on the retina PLAINTIFF saw everything and by now she was becoming desperate for hope and was suicidal because she was going blind in her only good eye by a reckless dentist that didn’t protect her eyes. PLAINTIFF felt sick to her stomach and drowning in despair not knowing what the future of her vision and her life holds. PLAINTIFF was just dying to see a specialist so that she could be treated and hoped for a positive outcome. After a few more days PLAINTIFF started seeing a HUGE chunk offloater very clear in the lines now. It was in the shape of a bird which huge wings that spanned across her whole visual field and had trailing specks and lines accompanying it. Every direction she looked at she could see it. It is not a floater.....it is a SUSPENDER. It lies right in the middle and does not fall off the visual field and float away in another direction. This is called a WEISS RING. It comes off of the optic nerve and it is extremely huge, visibly close to the retina, and hardly moves since it is a suspender. PLAINTIFF, and multiple people can say, that they have floaters. But these floaters that people have are not the same as the one that PLAINTIFF have from the optic nerve as a result of the PVD. PLAINTIFF has had floaters in the past but they were either small or drifted away or was very fade and far from retina and didn’t distort other objects in her vision. ~ N S N L n A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40. This WEISS RING is so sharp with distinct demarcation that it distorted everything that it 41. 42. 43. 44. 45, spans across. When it moves pass words, the words become distorted so it is very debilitating. It is NOT a floater and not everyone is unfortunate to get this type of floater that only comes from a PVD.It is like the difference between a 2-D line and a 3- dimensional ring-molecule structure that when moves, is not only side to side but wobbles/tumbles in 3-D space and distorts longer and overlaps so is thicker and more debilitating. It also has an accompanying trail of specks. PLAINTIFF has had floaters in the past and can fully understand that those can go unnoticed. It is only until a person gets a PVD floater/suspender that they will truly know how debilitating it is and cannot simply be ignored. Doctors are accustomed to saying “floaters” are harmless and throw this WEISS RING type floater into this broad category not fully understanding how differentit truly is from a normal floater that she herself have had with no problems. PLAINTIFF saw several retinal specialists and optomologists which all confirmed the detached vitreous but she did not mention the blue light exposure to them until months later, because again, all she cared about was that her life changed right in front of her and that she was going blind and needed prompt medical care. Little did PLAINTIFF know she would be hopeless without a cure and any options. The first specialist PLAINTIFF saw was Dr. Desmond Mcguire in Santa Ana on 1/13/16. He dilated her eyes and confirmed the PVD. PLAINTIFF never mentioned the curing light. He only said to just learn to live with it and that PLAINTIFF should not do anything about it and sent PLAINTIFF home. He said PLAINTIFF has myopia so her eyes are longer than normal people. PLAINTIFF has had myopia since she was 5 years old and nothing has ever happened to me because of myopia. PLAINTIFF has lived normally and functioned normally in work and school for decades in spite of her “risks.” PLAINTIFF was 33 when the PVD happened and it happened a day after exposure so how could it be attributed to myopia when she lived with myopia for 28 without any problems?? A day vs 28 years. Anybody can clearly see the difference. PLAINTIFF knowsfor a fact this was due to overly excessive exposure to factually damaging agents. The second specialist PLAINTIFF saw was Dr. Thomas Hanscom of Santa Monica on 3/1/16. He said the same thing...to just live with it and hope thatafter 2 years...the exhausted waiting period...that it might get better. PLAINTIFF did not bring up the blue light here either. At this time PLAINTIFF inquired about treatment options to which he said to do a vitrectomy---which is sucking outall the vitreous gel and replacing it with sterile saline. This carries extreme risks including retina detachment,risks for cataracts and infection and permanently losing her only good vision. He advised against it. He said treatmentrisks far outweigh benefits. PLAINTIFF lost all her hope at this point for ever restoring hervision. PLAINTIFF was falling further and furtherinto despair and depression that nothing could be done. The only hope PLAINTIFF has left was time itself. PLAINTIFF went home and looked online to see what could be done and she came across a procedure called “laser vitreolysis” This procedure utilizes a non-medically accepted way of blasting the floater with a high energy laser to break apart the fibers. Risks include blindness, spots, cataracts, glaucoma, and a ton of other side effects. The doctor PLAINTIFF consulted with is Dr. James Johnson of irvine, who is among the few in the nation that specializes in laser vitreolysis. Even then, after looking into her eyes and confirming his findings of PVD, he said the Gold Standard is vitrectomy and that PLAINTIFF was a better candidate for vitrectomy. It was 3 months into the PVD when PLAINTIFF saw him and he told her that if at 3 months the floater didn’t get better it will 7 O O o c ~ ~ a w n b s W d N N R D D N D N N N N e m e m e m 46. 47. 48. 49. 50. 51. 52. likely be permanentfor good. He is right as PLAINTIFF has not seen any noticeable change from 3 months and 2 years. He said he usually advises his patients to wait 3 months before getting laser. PLAINTIFF then saw Dr. Randall Nguyen of Huntington Beach on 3/9/16 and said PLAINTIFF was going suicidal at this point and she cannotlive with this and he said he can do vitrectomy but again, she would have to consent to all the risks. PLAINTIFF was so scared because it’s her only good eye and she was doomed either way because she cannotlive with this huge chunk of debris in her entire visual field. PLAINTIFF wassick to her stomach and just hoped that perhapsafter 2 years it will change like some doctors advised to wait. PLAINTIFF saw another specialist (with PVD she must come back periodically to check for further tears in retina tissue) Dr. John Hwang on 9/8/16 and this was thefirst specialist PLAINTIFF mentioned the blue light to. When she asked him if her eye disease was caused by blue light exposure he said he is not sure and that “it may or it may not be.” He said that “it is a possibility.” This alone says a lot and that there is not 100% denial and some belief that it may indeed be caused byit. Finally, PLAINTIFF saw another specialist doctor, Dr. Thomas Chu in Torrance. He told PLAINTIFF that she is “too young to have a PVD.” PLAINTIFF agrees with this statement fully because as mentioned above, she went 28 years of being myopic without any problems and suddenly a day after exposure PLAINTIFF immediately got eye abnormality and subsequent damage. It is 2 years this month and PLAINTIFF can honestly say that the floater is still as debilitating as ever. it's only about a 10% difference and PLAINTIFF doesn’t know if it truly is fading or if she is just adapted to it. It is still affecting herlife and her well-being and still spans across her entire visual field. Although it’s harder to see in dim light she can still see it in bright room light and it’s even worst outdoors. Again,this is not a floater that everyone may or may not have....this is a truly debilitating PVD Weiss Ring suspender and should be in another categoryof its own being how debilitating it is. Her vision means everything in the world to her and she cannot do anything or enjoy her life without this nuisance. It is like constantly turning on the windshield wiperin her car. It is so close to the retina that it feels as if it is scraping her eyes with every movement and she truly feels sick and disturbed by it and how it's ruining all aspects of her life. There's no more hope for her since she exhausted the 2 years of waiting while most doctors say 3 months likely permanent. PLAINTIFF read several stories by people in the PVD forums online and they all said they are desperate for a vitrectomy to clearthese debilitating floaters but doctors and insurance companies all refuse due to substantial risksit carries. Several people said they are suicidal and PLAINTIFF totally empathizes with them. Mind you, these people have 2 normal functioning eyes and are already suicidal let alone PLAINTIFF having only one good eye and no longer being able to do anything or enjoylife. More and more PLAINTIFF gets so angry at the staff at Ace Dentalfor ruining her life by not protecting her vision during a procedure they know to be harmful and how could they not intervene even though it was a long procedure they had a lot of time to, but they simply did not care about her and already saw herasa difficult patient so this contributed to them notcaring even if they did indeed realize PLAINTIFF was being exposed. PLAINTIFE confronted the office about this and they denied her claims and said it is due to something else, such as PLAINTIFF looking at her cell phone. PLAINTIFF has looked at cell phones and TVs and monitors and computers for decades and nothing happened. A 8 w n b h W N \ O © ~ 3 O A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53. 54, 55. 56. day after PLAINTIFF was exposed she immediately got a vitreous detachment. The timing couldn’t be more convincing. PLAINTIFF received the equivalent of decades of cumulative harmful exposure in only one day at a dose that is tremendously higher than everyday devices. They CANNOTattribute this to common everyday devices. On or about December 2016, PLAINTIFF served DEFENDANTS with PLAINTIFF'S “Notice of Intent to Sue” in accordance with Code of Civil Procedure §364. A true and correct copy of said letter is attached hereto. On or about November 2016, PLAINTIFF requested medical records and DEFENDANTS refused to give PLAINTIFF her records. DEFENDANTS demanded payment and prior natice to which PLAINTIFF obliged. Plaintiff has the right to and demanded to see her charts in person but DEFENDANTSrefused. When DEFENDANTS gave Plaintiffs her chart, it seemed entirely fabricated and not genuine like DEFENDANT had written everything after-the-fact in his own twisted words. DEFENDANTalso refused to give patient her original picture of her pre-op smile so that she could show other dentists. DEFENDANT insisted he lost/doesn’t remembertaking any photos of her mouth before shaving them down. DEFENDANT didnt give the complete medical record and falsified information in order to hide his negligence. Plaintiff scheduled an appointment and verified that they were ready before going to pick up the records and DEFENDANTS affirmed. When PLAINTIFF arrived, DEFENDANTS refused to acknowledge PLAINTIFF and give her her records but made her sit and wait in the chair for an undetermined/indefinite time. PLAINTIFF had to leave the office and went to security across the mall. When DEFENDANT furnished the copy of the records, they were incomplete and PLAINTIFF wished to compare them to her actual medical chart but DEFENDANTrefused. PLAINTIFF said when she paid for the records, she presumed they would include all, including all associated images. DEFENDANT refused to let PLAINTIEF see her actual records. PLAINTIFF took them as they are and left. FIRST CAUSE OF ACTION OF PLAINTIFF YEN HOANG DO AGAINST DEFENDANTS, AND EACH OF 57. 58. 59. 60. THEM (MEDICAL MALPRACTICE) Plaintiff repeat, re-allege and incorporate by reference Paragraphs 1 through 56, inclusive, herein above, as though fully set forth herein. At all timed herein mentioned DEFENDANTS DR. HOANG and DR. NGUYEN held themselves out to the public at large and to the PLAINTIFF in particular, as having competent, knowledgeable, diligent, and skillful dentists and staff in the practice of dentistry and specifically cosmetic dentistry. From April, 2015, to December, 2016, Plaintiff placed herself in and remained under the sole and exclusive control of the Defendants and each of them, for the purpose of improving the appearance of her teeth, treatment, care, advice. Plaintiff YEN HOANG DO employed Defendants, and each of them, to examine, consult with, and engage in treatment of Plaintiff with regard to the performance of dentistry to improve and enhance Plaintiff's smile. Pursuantto this employment, Defendants, and each of them, rendered professional dental services to Plaintiff YEN HOANG DO O w c o 1 A N u n h h W N B N D N N N N N N e m e e 61. 62. 63. 64. 65. 66. 67. 68. including but not limited to examination, consultation, and cosmetic dentistry. procedures with the specific intention of improving and enhancing Plaintiff's smile. From and after the time of said employment, while PLAINTIFF was under the sole and exclusive care, management, and control of Defendants, and each of them,so negligently failed to exercise the proper degree of knowledge and skill in examining, treating, and particularly in performing several procedures on Plaintiff's teeth so as to directly and proximately cause Plaintiff to suffer the serious injuries and damagesherein after alleged. At all timed herein mentioned Defendants were negligent when their conduct caused Plaintiff's injuries and constituted healthcare, medical and conduct below the applicable standard of care. Approximately December 22, 2015, DEFENDANT DR. NGUYEN failed to protect PLAINTIFF'S eyes with safety goggles despite being in the chair for approximately 30 minutes, a much longer than usual period of few minutes. DEFENDANT DR. NGUYEN failed to hold the instrument at an angle that would not aim directly into PLAINTIFFS eyes, and without adequate protection to block harmful exposure. Dr. NGUYENfailed to get the temps on the first time, instead struggled several times and patient wasleft with more exposure because DEFENDANT failed todo a simple task DEFENDANT had been doing over and over and over the course of between April until December. DEFENDANTfailed to safeguard PLAINTIFF and protect PLAINTIFF from having to come back mid-vacation by imploying a different method of creating the temps outside the mouth to create a more durable longer-lasting temp knowing that DEFENDANT DR. HOANG said to wait several weeks and come back after the holidays and PLAINTIFF having had to cycle through the office on several occasions. Instead, DEFENDANT used the same procedure and method to create a temporary that does not stay in place was made from scratch inside PLAINTIFFS mouth and cannot be snapped back on after it has fallen off, thus having to repeatedly come back and in turn be subjected to more time loss and harmful exposure. DEFENDANTSleft PLAINTIFF with pegged teeth and gaps in her mouth that affected her tongue and speech as well as discomfort and pain associated with sensitivity to hot, cold, and air,in addition to an appearance that humiliated her and gave her nasty looks from family and the public. Defendant DR. HOANG negligently failed to disclose to Plaintiff YEN HOANG DO all of the material risks of each of these procedures which included but was not limited to the possibility that the dental procedures would cause patient to have to come back repeatedly for temp replacement in addition to harmful blue light exposure unprotected, the latter which causes permanentserious injury to PLAINTIFF'S vision. Had Plaintiff been adequately informed of all such material risks of each of these procedures, PLAINTIFF would not have consented to any of them. DEFENDANT also gave a basic shade guide of approximately 4 natural colors and said these are the only options and that there was no in-between color to choose from and it was a take-it or leave-it situation, leaving Plaintiff to be forced to choose a shade that does not match the color nor the tone/undertones of PLAINTIFFS natural teeth. HAD PLAINTIFF been made aware of this, PLAINTIFF would not have consented to treatment. Later on, PLAINTIFF was aware that DEFENDANTlied, and that it IS possible to make shades in between shade guides, and that DEFENDANT had intentionally subjected PLAINTIFF to 10 O X 1 O N U n R k W N N O N O N N N N N N N m k e m e w p m e m e m e e e e 69. 70. 71. 72. 73. 74. 75. 76. emotional distress. DEFENDANT also cycled around the same shades,lied that they are different, and had PLAINTIFF come back over and over. As a direct and proximate result of the above-described negligence of the Defendants, and each of them, Plaintiff YEN HOANG DO has sustained injuries to her teeth and eyes, portions of which is permanent damage,all of which injuries have caused, and continue to cause Plaintiff great mental, physical, and nervous pain and suffering and incur medical and incidental expenses, all in an amount which is not presently known to Plaintiff and will be shown according to proof at the time of trial herein. As a further direct and proximateresult of the negligence of the Defendants, and each of them, Plaintiff has further lost the sum of $4000, which is the sum charged by Defendants, and each of them, to perform the treatment and procedures engaged in, and which amount should be refunded by Defendants, and each of them. By reason of these injuries PLAINTIFF has been and will in the future suffer loss of earnings,all to her further damages. Plaintiff has sustained further consequential damages including but not limited to having to undergo further treatment to remedy the improper and negligent treatment by Defendents, as well as possible follow-upcare. At this time, PLAINTIFF, cannot currently ascertain the exact amount of the loss of earnings and/or loss of earning capacity. However, this amount will be determined according to proof at the time of trial herein. SECOND CAUSE OF ACITON AGAINST DEFENDANTS, AND EACH OF THEM (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) Plaintiff repeat, re-allege and incorporate by reference Paragraphs 1 though 71, inclusive, herein above, as though fully set forth herein. During a period of time between April 2015 and December 2016, Defendants, and each of them, engaged in a series of outrageous acts and misconduct including but not limited to the actions and conduct described herein above regarding false and misleading misrepresentations and repeatedly subjecting PLAINTIFF to having to come back and promising ready treatment and other actions all engaged in with the specific purpose of causing both Plaintiffs to suffer and which did in fact cause Plaintiffs to suffer extreme debilitating physical and emotional distress. DEFENDANT on the first return visit, subjected PLAINTIFF to anxiety and depression by giving PLAINTIFF teeth that was huge and monochromatic and said these are the final product and to have patient go home for a full 24-48 hours to try all of them on and thus be subjected to more and prolonged anxiety and terror. All 8 were made at once to be tried on in full mouth,display: Although shades of veneer cannot be matched to a tee 100%, DEFENDANTS lied and said only the shades among the basic shade guide of 10-15 shades can be selected from, leaving PLAINTIFF to have to settle on only among 4 natural shades that is no where close to PLAINTIFF'S natural teeth tone and color. PLAINTIFF also had to come back repeatedly, with DEFENDANTcycling on the same color and lying that it is a new one. PLAINTIFF told DEFENDANT to not make herteeth stick out like overbite/gorilla edges. DEFENDANTproceeded to make the temps with thick incisal edges and made them stick out, and refused to shave them down, and left PLAINTIFF to be stuck with horrific looking teeth for weeks. 11 N O 0 N N W U A W N N O N N N N N N N N N e m m m m m m e m k m b e p m p e 0 0 ~ ~ O N h h A W N = O Y N O N B R L N = D O 77. 78. 79. 80. 81. 82. 83. Plaintiff is informed and believes that Defendants did notlose Plaintiff's file but refused to release it to Plaintiff to hide Defendants’ negligence. The acts and omissions of Defendants as aforesaid including Defendants’ refusal to provide Plaintiff with a copy of her complete dental file and thereafter claiming the file is lost constitutes outrageous conduct, were not privileged and caused Plaintiff severe emotional distress, as well as shock and injury to her body and mind. The acts and omissions of Defendants caused Plaintiff to experience severe emotional and physical injuries, suffering, pain, and anguish. Defendants are refusing to release Plaintiff's dentalfile in an attempt to hide their negligent conduct in providing medical care to Plaintiff. The acts, omissions and conduct of Defendants as aforesaid, were done intentionally or with reckless disregard to the probability that Plaintiff would suffer. The aforementioned acts and omissions of Defendants were willful, wanton, malicious, fraudulent, and oppressive and justify the awarding of exemplary and punitive damages in an amount subject to discovery and proof attrial. As a direct and proximate result of the intentional infliction of emotional distress by Defendants, and each of them, Plaintiffs have suffered and incurred the following injuries and damages: a. Medical and related expenses in an amount of which Plaintiff is not certain at this time (Plaintiff will seek leave of this Court to amend this complaint when the exact sum becomes known to her); b. Loss of income and earnings in an amount of which Plaintiff is not certain at this time (Plaintiff will seek leave of this Court to amend this complaint when the exact sum becomes known to her); c. General damages in an amount of which Plaintiff is not certain at this time (Plaintiff will seek leave ofthis Court to amend this complaint when the exact sum becomes known to her); THIRD CAUSE OF ACTION AGAINST DEFENDANTS AND EACH OF THEM (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) Plaintiffs repeat, re-allege and incorporate by reference Paragraphs 1 though 80, inclusive, herein above, as though fully set forth herein. Plaintiff is informed and believe and thereon allege that the Defendants, and each of them, negligently and carelessly engaged in a series of outrageous actions and misconduct during the time period between approximately April 2015 and December 2016, which included but is not limited to negligently and carelessly performing medical procedures, negligently and carelessly advising Plaintiff YEN HOANG DO ofthe proper course of treatment and of follow-up treatment, and other actions which caused Plaintiffs to suffer emotional distress. The above-described negligent actions of the Defendants, and each of them, proximately caused Plaintiff to suffer severe and debilitating emotional distress and the injuries and damages set forth in paragraphs 1-80 herein above. 12 H w n N O o 0 ~ ~ S N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTH CAUSE OF ACTION OF VIOLATION OF CALIFORNIA HEALTH AND SAFETY CODE 84. 85. 86. 87. 88. 89. 90. 91. §123100, ET SEQ. AGAINST DEFENDANTS, AND EACH OF THEM Plaintiff repeats and realleges and incorporates by reference, as though set forth in full, each and every allegation contained in paragraphs 1 though 83 of this Compliant. In or about November 2016, PLAINTIFF contacted DEFENDANTS and asked to inspect PLAINTIFF'S file and for a copy of Plaintiff's medical records to provide to new dentists who patients consulted with to further finish the work DEFENDANT left off. DEFENDANT DR. HOANGrefused to release Plaintiff's medical records or let her see her records in person. When asked to see her before pictures, DEFENDANT told her he had lost the file or doesn’t remember taking any pictures. California Health and Safety Code §123100(a) entitles Plaintiff to demand and inspect her medical files and records and compels Defendants to make Plaintiff's file and records available for inspection. Defendants refused to comply with Plaintiff's demand and did not make Plaintiff's file available to Plaintiff for review and inspection. California Health and Safety Code, Section 123100 (b), entitles Plaintiff and/or her representative to demand a copy of Plaintiff's files and records and compels Defendants to release a copy of Plaintiff's file to Plaintiff. Defendant's refused to comply with Plaintiff's demand and did not provide to Plaintiff a complete original copy of her medical file. Defendant's refusal to comply with their obligations under the Health and Safety Code and their willful and intentional violation of the law has caused Plaintiff additional injuries and damages as Plaintiff's medical file is need by heath care providers who are going to treat Plaintiff and correct the irregularities in her face which were caused by Defendants. Plaintiff alleges that Defendants, and each of them, were the legal (proximate) cause of damages to Plaintiff by the following acts or omissions to act; Defendants negligently maintained Plaintiff's medical files and records causing the records to be lost, as Defendants’ claim, thereby creating additional costs, expenses and inconvenience to Plaintiff in seeking help from other medical providers, as they would have to review Plaintiff's medical file to determine the scope of Defendants’ surgeries, so that Plaintiff may be treated. Defendants had an affirmative duty to use due care and act reasonably in maintaining Plaintiff's medical files and releasing the files to plaintiff. Defendants knew, or reasonably should have known, that their failure to act reasonably would cause Plaintiff to suffer damages and losses. At all times herein mentioned, Defendants breached their duty by failing to perform their duties in a manner that would not have been injurious to Plaintiff. Pursuant to Health and Safety Code, Section 123120, Plaintiff, in addition to her other damagesis entitled to reasonable attorneys fees and costs due to Defendants’ willful and intentional violation of Health and Safety Code §123100 (a) and (b). PRAYER WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: 13 O O 0 0 ~ ~ O A W u B W N R D N N D N D N N N O N e e e m e m — General damages in a sum in excess of the minimum jurisdictional limits of the court; Past medical and incidental expenses according to proof; All future medical and incidental expenses according to proof; All loss of earnings according to proof; Pre-judgment interest; Costs of suit herein incurred; and Such other and furtherrelief as the Court deemsjust and proper.N o u p s e w N e E Dated: April 16, 2018 Respectfully submitted: YEN HOANG DO IN PRO PER oA AOAGL By: X WO) YEN HOANG DO 14 O o 0 0 N N W h B W N N N N O N N O N O N N N m m m m e m op e he d p e pe d p m e m e a 0 3 A L n B h W N = O V O 0 N n B R A W N = D EXHIBITS A. PLAINTIFF didn't have the capacity to search the entire web for articles and reading through éverything but when she did an initial simple search on Google and typed in “blue light vitreous,” she immediately came across an article that proved a cause-and- effect relationship between blue light intensity and eye damage, particularly vitreous adhesion and detachment. PLAINTIFF is sure if this article was one ofthe first articles that popped up in her search, she would indeed find a ton more that proves her claim. When she searched more, she came across so many different articles by eye doctors that warns of the dangers of blue light. More recently, the solar eclipse raised so many concerns and warnings about not looking directly at harmful light, even for a few seconds can damage your eyes. Emergency rooms were seeing a flood of people the next day complaining of blurriness related to looking at the sun. This proves it only takes a few seconds of harmful exposure to cause permanent damage to delicate eye tissue, which occurs immediately, like in her case. PLAINTIFF can go on and on adding excerpts from a ton of research articles but one article very much sums up everything. Excerpts from Nuzzi, et. Al to back up her claim: 1. "The eye is a highly metabolically active structure, continually bathed in light. Thus, oxidative and particularly photo-oxidative processes are critical factors in ocular pathologic conditions" 2. "In the eye, the vitreous gel is a compact, homogeneous, and clear body at birth. With aging, the vitreous gel can undergo progressive degeneration characterized by vitreous liquefaction and weakening of the vitreoretinal adhesion between the posterior vitreous hyaloid and the inner limiting membrane (ILM). In about 25-30% of the population, this degeneration may result in posterior vitreous detachment (pvD)" 3. "weakening is often concurrent with the vitreous structure collapse and produces a PVD [4,8]. In the literature, these processes have been speculated to be promoted by the same molecular mechanisms [8-10], but their underlying pathogenesis is still poorly understood: different factors are presumed to play a role and, among them, an increase in the production of free radicals (11,12]." 4. "An imbalance between free radicals production and antioxidant defenses may produce oxidative stress. As previously mentioned, oxidative stress can lead to many ocular diseases, such as macular degeneration and open-angle glaucoma [13]. In the vitreous gel, oxidative stress can damage collagen fibrils [9], altering their surface coatings (required to prevent aggregation into bundles) and consequently promoting vitreous liquefaction" 5. "Since the eye is continuously exposed to light, incident light may be a major factor that promotes the production offree radicals " 6. "The correlation between oxidative stress and vitreous degeneration, however, has been shown only in animal models, including rabbit and calf eyes, where the 15 O O 0 0 N N O N W n h s W N R N R N N N N N D O N R N = m m e m e m e m e a e e e m p m X X N N A A n b W N = C S Y W N N D R A W N = o S vitreous has been exposed to light sources and the effects of different photosensitizers have been tested in vitro and in vivo. Free radicals have been shown to cause a reduction in the molecular weight of hyaluronan and the aggregation of the vitreous collagen, leading to degeneration changes in the vitreous structure” Please see the rest as attached. Basically this article is clear proof that PLAINTIFF was exposed to strong light/low wavelength/ free radicals that led to the vitreous degeneration overnight. PLAINTIFF is positive this is what happened and she witnessed every stage of it as it was happening right before her eyes. The eyes, like any other organ and biological systems, is subjected to external insults to which it builds defense mechanisms to combat the injuries. DEFENDANTS subjected PLAINTIFF to extreme injurious insults and free radicals and the eyes were not allowed to adapt or fight back damage. PLAINTIFF is left with vision that now looks like a permanent war zone that is not only stagnant but moves with PLAINTIFF's every move and thought process and destroys every aspect of PLAINTIFF's life mental and physical. This is WORST for PLAINTIFF than losing her fingers and toes and losing one functioning eye is like losing both and there is nothing for PLAINTIFF to enjoy or do with swiftness and mental clarity. Here are some cautions that come with, as an example, the ELIPAR 2500 HALOGEN CURING LIGHT, which may or may not have been the one used on me: a. CAUTION i. Prolonged exposure may cause retinal damage. ii. Prolonged exposure to an area may cause oral tissue trauma. iii. The use of an eyeshield or protective glasses that effectively block light below 500 nm wavelength is recommended for dental staff. iv. Do not look directly at the light guide and do not stare at light reflected from tooth surface. v. Do not expose light to persons with extreme brightness sensitivity caused by cataract surgery or photosensitizing drugs. G. The Principle of res ipsa foquitor applies to PLAINTIFF's injuries. H. ALL DEFENDANTS professional conduct towards plaintiff fell below or otherwise unjustifiably departed from the described standard: a. Indifference to an obvious risk of injury to health; b. Actual foresight of the risk coupled with the determination nevertheless to run it; ¢. An appreciation of the risk coupled with an intention to avoid it, but the attempted avoidance involves a very high degree of negligence and d. Inattention to a serious risk which goes beyond “mere inadvertence” in respect of an obvious and important matter which the doctor's duty demanded, he should address 16 EFEXHIRIT “R” © 0 2 O N W n b h W N N N O N N N N O N O N O N m = m m e m k d p e m e d e 0 J O N U n BA A W N = O V U N N N N R W N = o O MARK L. KIEFER, ESQ., SB# 116633 COREY E. KRUEGER,ESQ., SB# 244989 ERICKSEN ARBUTHNOT 835 Wilshire Blvd., Suite 500 Los Angeles, CA 90017-2603 (213) 489-4411 (213) 489-4332 Fax ELECTRONICALLY FILED Superior Court of California, County of Orange 05/25/2018 at 10:18:00 Ah Clerk of the Superior Court By harlene Orellana,Deputy Clerk Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE (erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE YEN HOANG DO, Plaintiff, vs. ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC., RICHARD HOANG DDS, and MYLOC NGUYEN, DDS. Defendants. a r ” N a r ” S e e r ” N a ” M e a a N a N a a a a N a N a a ? N a t Na sr ? N a s N e N t N a o a t N t N o a a t N o a ” CASE NO: 30-2017-00963295-CU-MM-CJC Complaint filed: 12/22/17 Trial date: None Assigned to: Hon. David Chaffee Dept. C20 DEFENDANTS RICHARD A. HOANG, D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL OFFICE’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; DECLARATION OF COREY E. KRUEGER; EXHIBITS [Concurrently filed with Request for Judicial Notice and Proposed Order] DATE: June 22, 2018 TIME: 9:30 a.m. DEPT: C20 RESERVATION #: 72819478 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 22, 2018, at 9:30 a.m., or as soon thereafter as the matter may be heard in Department C20 of the above-entitled Court, located at 700 West Civic Center Drive, Santa Ana, California, defendants RICHARD A. DEFENDANTS RICHARD A HOANG. D.N.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL S H O W N O O 0 2 S N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOANG, D.D.S. and RICHARD A. HOANG, D.D.S, INC. dba ACE DENTAL OFFICE will and hereby do demur to plaintiff's First Amended Complaint. This Demurrer is made pursuant to Code of Civil Procedure § 430.10 on the following grounds: 1. Plaintiffs first cause of action for Medical Malpractice/Negligence has already been deemed to be barred by the applicable statute of limitations. Furthermore, even as amended, the cause of action still fails to comply with the applicable statute of limitations, and thus the cause ofaction fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure § 430.10(e). The cause of action is also uncertain. Code of Civil Procedure § 430.10(f). 2. Plaintiff's second cause ofaction for Intentional Infliction of Emotional Distress fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure § 430.10(e). The cause of action is also uncertain. Code of Civil Procedure § 430.10(f). 3s Plaintiff's third cause of action for Negligent Infliction of Emotional Distress has already been deemed to be duplicative of the cause of action for Medical Malpractice, and therefore improper. Furthermore, even as amended, the cause of action still fails to comply with the applicable statute of limitations, and thus the cause of action fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure § 430.10(e). The cause of action is also uncertain. Code of Civil Procedure § 430. 10(f). 4, Plaintiff's fourth cause of action for Violation of California Health and Safety Code § 123100, et seq. fails to state facts sufficient to constitute a cause of action. Code of Civil Procedure § 430.10(e). The cause of action is also uncertain. Code of Civil Procedure § 430.10(f). Additionally, this is a new cause of action added without leave of court. Moving defendants request that the Court take judicial notice of the First Amended Complaint herein pursuant to Evidence Code §§ 452(d)(1) and 453. I 1" 2 DEFENDANTS RICHARD A. HOANG, D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL [ = = © 0 0 N N O N w n A W N N N N N N O N p o R N P R E R U N R R E Z E Z I E R G L = o This Demurreris based upon this Notice, the attached Memorandum of Points and Authorities, the records, pleadings, documents, and papers on file herein, upon matters judicially noticeable, and upon such other and further evidence, both oral and documentary, as may be presented at the time ofthe hearing ofthis Demurrer. DATED: May 24, 2018 By: ERICKSEN ARBUTHNOT MARKIL. KI Q. COREY'E: SER, ESQ Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE 3 NCTUMNANTE RICHARD A HOANG NN S AND RICHARD A. HOANG.DDS.INC. dbaACEDENTAL O O 0 0 N N n v R e W N N N N N N N N D N N e e s e m e e MEMORANDUMOF POINTS ANUTHORITIES L INTRODUCTION Plaintiff filed the instant action on December 22, 2017. The various defendants, including these moving defendants, filed Demurrersas to the original Complaint, and those were sustained with leave to amend on or about April 6, 2018. At the Case Management Conference in this matter on or about May 10, 2018,the Court asked the defendants about their intentions with respect to responsive pleadingsas to the First Amended Complaint. Upon being informed that the defendants intended to file Demurrers, the Court set a hearing for said Demurrers and set a deadline for the filing of the same. The First Amended Complaint continuesto assert time-barred causes of action without amending to remedy the problem. None of the causes of action asserted state a viable cause of action. Finally, plaintiff added a new cause of action without leave of court. Accordingly, for reasons discussed in further detail below, the instant Demurrer should be sustained in its entirety, without leave to amend. IL A PARTY MAY DEMUR WHEN GROUNDS FOR OBJECTION TO THE PLEADINGS APPEAR ON THE FACE OF THE COMPLAINT. “When any ground for objection to a complaint...appeats on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrerto the pleading.” California Code of Civil Procedure § 430.30(a). A general demurrer lies whereit appears from the face of the complaint that the plaintiff has not alleged facts sufficient to state a cause of action. Code of Civil Procedure § 430.10(¢); James v. Superior Court, 261 Cal. App. 2d 4135 (1968). A demurreralso lies where the pleading is uncertain. Code of Civil Procedure § 430.10(f). For the purpose oftesting the sufficiency of a cause of action, contentions, deductions, or conclusions of law are not admitted as true, and must be ignored. Aubry v. Tri-City Hospital District, 2 Cal. 4" 962, 966-67 (1992); Metzenbaum v. Metzenbaum, 86 Cal. App. 2d 750, 754 (1948). 4 NEFENNANTS RICHARD A HOANG. D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL O © 3 O N w n B r W D N O O N O N R N R N N N N m m e s a e a e s e e e d e e R N B R Y R B I R R B E B E « 3 8 & 2 © 0 = ~ o III. THE FIRST CAUSE OF ACTION IS TIME-BARRED. The Court appropriately sustained moving defendants’ Demutrerto the original Complaintas to this cause of action by finding that the cause of action was time-barred. Arguably, under the circumstances, plaintiff should not have asserted this cause of action again in the First Amended Complaint, based upon that ruling (the allegations could not be changed to remedy the statute oflimitations problem without making the First Amended Complaint a sham pleading). There is no dispute that the first cause of action is one for Medical Malpractice, and that it therefore arises out of allegations of professional negligence by a healthcare provider. Accordingly,there is no dispute that the applicable statute of limitationsis the one found in Code of Civil Procedure § 340.5. Underthat statute, plaintiff was required to file the instant action within one (1) year “after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.” The First Amended Complaint carries over from the original Complaint the allegation that plaintiff discovered the alleged wrongdoing in December 2015. See First Amended Complaint, §§ 23-34,in particular paragraph 34. Thereis no dispute that plaintiff alleges that she discovered, or at least should have discovered, her alleged injury in December 2015. Since plaintiff did not file the instant action until December 2017, the action is time-barred. IV. PLAINTIFF’S SECOND CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION. In order to state a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead the following elements: (1) outrageous conduct by the defendants; (2) defendants’ intention of causing emotional distress, or defendants’ reckless disregard of the probability of causing emotional distress; (3) plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants’ outrageous conduct. 5 DEFENDANTS RICHARD A, HOANG. D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL O O © ~ ~ O N Ww » h p W N N O N N O N N D N N N O N = m m e m e m p e m e p m em t m d m c o J A N W n b h Ww W N = O O W O O N N P E W N = O Fletcher v. Western National Life Insurance Co., 10 Cal.App.3d 376, 394 (1970); Trerice v. Blue Cross of California, et al., 209 Cal.App.3d 878, 883 (1989). In order to be ‘outrageous,’ conduct “must be so extremeas to exceed all bounds ofthat usually tolerated in a civilized society.” Trerice, 209 Cal.App.3d at 883. Indeed, the alleged conduct must be “atrocious, and utterly intolerable.” Hailey v. California Physicians’ Service, 158 Cal.App.4™ 452, 474 (2007). While the relationship between the partiesis significant in determining whetherliability should be imposed (Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 498, fn. 2 (1970)),case law universally requires that the conduct be truly outrageous, even when a relationship between the parties bears on the inquiry. Basic rude or insolent behavior is not enough to meet the outrageous conduct requirement unless other factors are present. Bundren v.Superior Court, 145 Cal.App.3d 784, 790 (1983). Though outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by thetrier offact, the Court may determine whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Trerice, 209 Cal.App.3d at 883. Further, liability only attaches where the defendant intended the resultant harm, or should have recognized that his or her conductis likely to cause the resultant harm. Spackman v. Good, 245 Cal.App.2d 518, 529. Where the conductis not undertaken for the purpose of causing the resultant harm, plaintiff must show circumstances indicating that the conduct was of a nature which reasonably should have been recognized as likely to cause the harm in question. Id. at 530. The Court sustained a Demurreras to this cause of action in the original Complaint. Plaintiff has not changed her allegations in a meaningful way, and she continues to fail to state a cause of action for Intentional Infliction of Emotional Distress. Whatplaintiff describesis an ordinary course of dental care with a disgruntled patient. Plaintiff may attempt to cast blame upon the defendants for her dissatisfaction, but she is very, very far from alleging truly “outrageous” conduct. She has not even alleged the rude or insolent behavior that Bundren found inadequate for this cause of action. 6 DEFENDANTS RICHARD A. HOANG. D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL O O 0 N N N vi n B s W N N N N O N N N N N N e m e m e m e t e m e m p t e d e d 0 N O N U n bh , W N = O D N N D W N = O Clearly, plaintiffhas failed to stated facts sufficient to constitute a cause of action for Intentional Infliction of Emotional Distress. V. THE THIRD CAUSE OF ACTION IS DUPLICATIVE OF THE FIRST CAUSE OF ACTION, AND IT FAILS FOR THE SAME REASONS. As the Court rightly observed in ruling upon the Demurrers to the original Complaint, there is no independenttort ofNegligent Infliction of Emotional Distress. Lawson v. Management Activities, 69 Cal. App. 4™ 652, 656 (1999). The Court having ruled this way already, plaintiff should not have asserted this cause of action again in the First Amended Complaint. Further, plaintiff has done nothing to alter her pleading in a way that would support a claim for Negligent Infliction of Emotional Distress. Since this cause of action is duplicative of the first cause of action, it should be eliminated on that basis. Further, since this cause of action arises out of the alleged professional negligence of a healthcare provider,it too is time-barred, as was the first cause of action. There is no dispute that the cause of action for Negligent Infliction of Emotional Distress is improper, and it should be eliminated. VI. THE FOURTH CAUSE OF ACTION IS IMPROPER ON MULTIPLE GROUNDS. The fourth cause of action is improper on multiple grounds. First, plaintiff added this cause of action without leave of court. Second, the statute cited does not provide for individual tort liability. A. Plaintiff Added This Cause Of Action Without Leave Of Court. This cause of action does not appear in the original Complaint. Plaintiff cannot add a cause of action to the First Amended Complaint based on leave to amend after a Demurrer unless that cause of action relates to the issues addressed in the Demurrer and the Court’s ruling thereon. Harris v. Wachovia Mortgage, FSB, 185 Cal. App. 4h 1018, 1023 (2010), citing People ex rel. Dept. Pub. Wks. v. Clausen, 248 Cal. App. 2d 770, 785 (1967). This cause of action does notfit the circumstances where the addition of a cause of 7 NEFENNIANTS RICHARD A HOANG D.D.S. AND RICHARD A. HOANG. D.D.S.. INC. dba ACE DENTAL o O 0 N N A n n A W N N N N B I R R B V B R V B N B E Z I Z E E E S = 3 — —- — — action is permitted, and accordingly it was added improperly. Thus, the cause of action should be eliminated on that basis. B. The Cited Statute Does Not Provide For Individual Tort Liability. Health and Safety Code § 123100 and the statutes following it do not provide for individual tort liability. Meier v. United States, 2009 U.S. App. LEXIS 2090.! Accordingly,this is not a valid cause ofaction, andit should be eliminated. VII. CONCLUSION Based on the foregoing, moving defendants respectfully request that the Court sustain the instant Demurrer in its entirety, without leave to amend. DATED: May 24, 2018 ERICKSEN ARBUTHNOT By: L 5 COREY E. KRUE ESQ Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE ! Though this federal court decision is unpublished, the Courtmay takejudicial notice ofthe decision pursuant to Evidence Code § 452(d)1). See Gilbert v. Master Washer& Stamping Co., Inc., 87 Cal. App. 4* 212, 217, fn. 14 (2001). Forthe Court’s convenience, a copy ofthe opinion is attached to the concurrently-filed Request for Judicial Notice. The Courtmay consider matters judicially noticeable in passing upon a Demurrer.v.Niclson, 83 Cal. App. 4* 1061 (2000). 8 DEFENDANTS RICHARDAHOANG. DDS.ANDRICHARD A. HOANG. D.D.S.. INC. dbeACEDENTAL Declaration © 0 3 O N U n » WL W N N = N N N N R 2 3 9 3 9 5 7 2 0 8 2 5 W w = Q O O O 0 N A A W n h e W w N = O o 24 DECLARATION OF COREY E. KRUEGER I, Corey E. Krueger, declare and state as follows: 1. I am an attorneyat law duly licensed to practice before all courts ofthe State ofCalifornia. I am a senior associate with the law firm of Ericksen Arbuthnot, counsel ofrecord herein for defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG, D.D.S, INC. dba ACE DENTAL OFFICE. I have personal knowledge of the facts stated herein, and if called upon to testify to them, I could and would do so competently. 2: I recently took over the handling ofthis matter from Christopher Washington, Esq., who has left the employ ofthis firm. From my conversations with Mr. Washington, it is my understanding that he has spoken with plaintiffpersonally regarding the pleading deficiencies in the First Amended Complaint, complying with Code of Civil Procedure § 430.41. 3. Out ofan abundance ofcaution, and in order to ensure compliance with Section 430.41, I sent plaintiff a letter on May 23, 2018 to meet and confer regarding the issues ofthe instant Demurrer. A true and correct copy ofthat correspondence is attached hereto as Exhibit “A”. I have not been contacted by plaintiff since sending that letter. I do not anticipate being contacted by her and receiving an indication that she will amend to address the issues with the First Amended Complaint. 4. I prepared the instant Demurrer in order to comply with the Court’s order regarding the timing ofthe filing ofthe instant motion. I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is true and correct. Executed this 24™ day ofMay, 2018, at Los Angeles, CE Corey E. Krueger California. 9 DEFENDANTS RICHARD A. HOANGDDS ANDRICHARD A. HOANG. DD.S_. INC. dbaACEDENTAL Exhibit “A” l Sau NE le BB \ ERICKSEN ARBUTHNOT Autorneys ar Law Shed Ten [Tl csA N ORE Porte Ure May 23, 2018 VIA ELECTRONIC MAIL AND U.S. MAIL Yen Hoang Do 14592 Sheffield Street Westminster, California 92683 Re: Yen Dov. Richard A. Hoang, D.D.S., et al. Our clients: Richard A. Hoang, D.D.S. and Richard A. Hoang, D.D.S., Inc. dba Ace Dental Office Dear Ms. Do: I am now working with Mark Kiefer, Esq. in defense of Dr. Hoang and his corporation in this matter. Christopher Washington is no longer with this firm, As I understand it. Mr. Washington had spoken with you regarding your First Amended Complaint and the fact that it is improperly pled. As you know, al the recent Case Management Conference, the Court scheduled a hearing for Demurrers to the First Amended Complaint by the defendants. We plan to file such a motion. Pursuant to Code of Civil Procedure § 430.41, we are required to communicate with you regarding the problems with the pleading prior to filing a Demurrer. As | noted above, it is my understanding that Mr. Washington has already had that conversation with you, but he is no longer employed at my firm and I cannot confirm exactly what he discussed with you, Thus, | am writing this letter in order to confirm that the meet and confer effort has been undertaken. First Cause of Action — Medical Malpractice/Negligence As you know, the Court has already ruled that this cause of action is barred by the statute of limitations (Code of Civil Procedure § 340.5). Thus, it is our position that you should not have asserted this cause of action in the First Amended Complaint ar all. That being said, even if it were appropriate for Yen Hoang Do Re: Yen Dov. Richard A. Hoang, D.D.S., et al. May 23, 2018 Page 2 you to assert this cause of action in the First Amended Complaint, the fact remains that you have not pled any facts that change the analysis as to the statute of limitations. We plan to address that cause of action on statute of limitations grounds, as well as any other grounds that may be appropriate. Third Cause of Action — Negligent Infliction of Emotional Distress The Court has already ruled that this is not a separate cause of action, but ratheris duplicative of the negligence (or,as here, medical malpractice) cause of action. Thus, this cause of action should not be asserted at all. To the extent that it is asserted,it also fails to comply with the statute of limitations (Code of Civil Procedure § 340.5). We plan to address this cause of action on statute of limitations grounds, as well as any other grounds that may be appropriate, Second Cause of Action — Intentional Infliction of Emotional Distress In order to state a cause of action for Intentional Infliction of Emotional Distress, a plaintiff must plead the following elements: (1) outrageous conduct by the defendant; (2) defendant’s intention of causing emotiona l distress, or defendant’s reckless disregard of the probability of causing emotional distress; (3) plaintiff's suffering severe or extreme emotiona l distress; and (4) actual and proximate causation of the emotional distress b y the defendant’s outrageous conduct. Fletcher v. Westem Nationa] Lif e Insurance Co., 10 Cal.App.3d 376, 394 (1970); Trerice v. Blue Cross o f California, et al., 209 Cal.App.3d 878, 883 (1989). In order to be ‘outrageous,’ conduct “must be so extreme as to ex ceed all bounds of that usually tolerated in a civilized society.” Trerice, 209 Cal.App.3d at 883. Indeed, the alleged conduct must be “atrocious, and utterly intolerable.” Ilailey v. California Physicians’ Service, 158 Cal.App.4® 452, 474 (2007). While the relationship between the parties is signific ant in determining whether liability should be imposed (Alcorn _v. Anbro Engineering, Inc., 2 Cal.3d 493, 498, fn. 2 (1970)), case l aw universally requires that the conduct be truly outrageous, even when a relationship between the parties bears on the inquiry. Basic rude or insolent behavior is not enough to meet the outrageous conduct requirement unless other facto rs are present. Bundren v. Superior Court, 145 Cal.App.3d 784, 790 (1983 ). Though outrageousness of a defendant’s conduct normally presents an issue of Yen Hoang Do Re: Yen Dov. Richard A. Hoang, D.D.S., etal. May 23,2018 Page 3 fact to be determined bythetrier of fact, the Court may determine whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Trerice, 209 Cal.App.3d at 833. Further, liability only attaches where the defendant intended the resultant harm, or should have recognized that his or her conduct is likely to cause the resultant harm. Spackman v. Good, 245 Cal.App.2d 518, 529. Where the conduct is not undertaken for the purpose of causing the resultant harm, plaintiff must show circumstances indicating that the conduct was of a nature which reasonably should have been recognized as likely to cause the harm in question. Id. at 530. It is clear that the First Amended Complaint does not adequately plead facts to support this cause of action. Thus, it is our position that this cause of action also fails, Fourth Cause of Action ~ Violation of Health and Safety Code § 123100 As far as we can tell, this cause of action was not asserted in the original Complaint. The Court did not grant you leave to add new causes of action, and thus, this cause of action is improper and must be removed. Harris v. Wachovia Morlgage, FSB, 185 Cal. App. 4" 1018, 1023 (2010),citing People ex rel. Dept. Pub. Wks. v, Clausen, 248 Cal. App. 2d 770, 785 ( 1967). Additionally, Health and Safety Code § 123100 and the statutes following it do not provide for individual tort liability. Meier v. United States, 2 009 1.8. App. LEXIS 2090. Thus,this is not a valid cause of action and cannot r emain. Yen Hoang Do Re: Yen Dov. RichardA. Hoang, D.D.S., ei al. May 23, 2018 Page 4 Based on the foregoing, it is our position that the entire First Amended Complaint should be eliminated. Since the Court ordered that we are to file our Demurrer on or before May 25, 2018, we will do so immediately. In the meantime,if you will consider dismissing this action prior to the need tofile the Demurrer, please call me to discuss. Very truly yours, ERICKSEN ARBUTHNOT O o 0 0 N N W n h h W N N O N O N O N N MN E N B Y R B R N E R E Z S = I B E 0 = 8 ROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1 am employed in the County of Los Angeles, State of California. I am overthe age ofeighteen and not a party to the within action; my business address is 835 Wilshire Blvd., Suite 500, Los Angeles, California 90017. On May 25, 2018, I served the foregoing document described DEFENDANTS RICHARD A. HOANG, D.D.S. AND RICHARD A. HOANG, D.D.S., INC. dba ACE DENTAL OFFICE’S NOTICE OF DEMURRERAND DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; DECLARATION OF COREY E. KRUEGER; EXHIBITS on the interested parties in this action: X byplacing true and correct copies thereof enclosed in sealed envelopes addressed as follows: PERSONAL & CONFIDENTIAL Thomas M. Peabody, Esq. Natalie J. Buccini, Esq. YEN HOANGDO Carroll, Kelly, Trotter, Franzen, McBride & 14592 Sheffield Street Peabody Westminster, CA 92683 225 Broadway, Suite 1575 (714) 716-3365 San Diego CA 92101 Plaintiffin Pro Per (619) 814-5900 / (6°9) 814-5999 AttorneysforDefendant Myloc Nguyen, D.D.S. X BY MAIL. I caused such envelopes with postage thereon fully prepaid to be placed in the United States mail in the County ofLos Angeles. BY PERSONAL SERVICE. I caused such envelopes to be delivered by hand to the offices ofthe addressee. BY FACSIMILE. I caused such documents to be sent to the address above via the facsimile number indicated. I am “readily familiar” with this firm’s practice ofcollection and processing correspondence for mailing. Under that practice it would be deposited with U.S.postal service on that same day in the ordinary course ofbusiness. 1 am aware that on motion of party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one (1) day after date ofdeposit for mailing in affidavit. Executed on May 25, 2018, at Los Angeles, California. X (STATE) 1 declare under penalty ofperjury under the laws ofthe State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office ofa member ofthe bar of this court at whose direction the service was made. or Wp Aide Avila 10 DEFENDANTS RICHARD A. HOANG. DDS.ANDRICHARD A. HOANG,DDS, INC. dbaACE DENTAL EXHIBIT “C” O 0 ~ ~ & W n ~ ~ W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MARK L. KIEFER, ESQ., SB# 116633 ROYCE Y. HUANG, ESQ., SB# 285136 ERICKSEN ARBUTHNOT ELECTRONICALLY FILED 835 Wilshire Blvd., Suite 500 Seegenoma Los Angeles, CA 90017-2603 wourity of LrEnge (213) 489-4411 06/25/2018 at 01:55:00 PM (213) 489-4332 Fax Clerk of the Superior Court By e Clerk Deputy Clerk Attorneys for Defendants RICHARD A. HOANG, D.D.S. and KICHARD A. HUANU D.D.S., INC. dba ACE DENTAL OFFICE(erroneously sued and served as ACE DENTAL OFFICE OF DR. RICHARD HOANG DDS, INC) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE DDS, and MYLOC NGUYEN, DDS. Defendants. YEN HOANG DO, ) CASE NO: 30-2017-00963295-CU-MM-CJC ) edPlaintiff, ) Complaintfiled: 12/22/17 ) Trial date: None vs Assigned to: Hon. David Chaffee ACE DENTAL OFFICE OF DR. RICHARD ) Dept. C20 HOANG DDS, INC., RICHARD HOANG ) NOTICE OF RULING ) ) ) ) TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 22, 2018 at 9:30 a.m. in Department C20 of the above-entitled Court, located at 700 West Civic Center Drive, Santa Ana, California, defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG, D.D.S, INC. dba ACE DENTAL OFFICE’s Demurrer and Motion to Strike as to plaintiff's First Amended Complaint as well as defendant MYLOC NGUYEN, DDS’s Demurrer to plaintiff's First Amended Complaint came on regularly for hearing. Plaintiff YEN HOANG DO, in pro per, appeared on behalf of herself. Royce Y. Huang, Esq. of Ericksen Arbuthnot appeared on behalf of defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG, D.D.S, INC. dba ACE DENTAL OFFICE and Joshua S. Dixon, Esq. of Carroll, Kelly, Trotter, Franzen, McBride & Peabody O O 0 N N N N n m B R A W N N O N ON ON ER NN B R R U B R N E E B E I S I R O E E E R E B appeared on behalf of defendant MYLOC NGUYEN, DDS. The Court’s tentative ruling, attached hereto as Exhibit A, became the final order ofthe Court. In addition, the Case Management Conference, set on June 22, 2018, was continued to July 26, 2018 at 8:30 a.m. in Department C20 ofthe above-entitled Court. DATED: June 25, 2018 ERICKSEN ARBUTHNOT By: ATARK L. KIEFER, ESQ. Vv ROYCE Y. HUANG, ESQ Attorneys for Defendants RICHARD A. HOANG, D.D.S. and RICHARD A. HOANG D.D.S., INC. dba ACE DENTAL OFFICE EXHIBIT “A” 30-2017-963295 Do VS ACE Dental Office of Dr. Richard Hoang DDS, Inc. 1) Demurrer to FAC; 2) Motion to Strike; and 3) Demurrer to FAC A) Hoang Defendants’ Demurrer Medical Cause of Action No. 1 for Medical Malpractice is barred by the one-year statute of limitations. The Demurrer to COA #1 is therefore sustained, without leave to amend. Under CCP § 340.1, an action against a health care provider for professional negligence must be commenced either (a) within three years after the date of the injury, or (b) one year after plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever occurs first. CCP § 340.5. “The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of “injury,” a term of art which means “both the negligent cause and the damaging effect of the alleged wrongful act.” Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. [citation].” Id. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110. Plaintiff alleges the blue light incident occurred during her visit on 12/23/2015. FAC 77 33-36. Plaintiff clearly alleges that she suspected her eye was injured from the blue light incident the very next day (or 12/24/2015). Thus, the one-year SOL began to run. Plaintiff did notfile this action until 12/22/2017, more than one year later. Thus, her claim for medical negligence appears time barred. #2 The Demurrer to Cause of Action No. 2 for Intentional Infliction of Emotional Distress (11ED) is sustained, with leave to amend within 10 days. The elements of IIED are: 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, Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. “To state a cause of action, the conduct alleged must be “'so extreme and outrageous “as to go beyond all possible bo[u]nds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. [Citations omitted.] “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Hailey v. California Physicians’ Serv. (2007) 158 Cal. App. 4th 452, 474, as modified on denial of reh’g (Jan, 22, 2008). Acting in a rude or insolent manneris not enough. Bundren v. Superior Court (1983) 145 Cal. App. 3d 784, 790 [Debt collector's rude manner was not enough to show I1ED.] Where the offensive conduct was not undertaken for the purpose of causing the harm received proof of the intent of the actor to cause such harm, in substance, may be supplied by proofof circumstances showing the conduct was of that nature which reasonably should have been recognized as likely to cause the harm sustained. Spackman v. Good (1996) 245 Cal. App. 2d 518. Plaintiff has not alleged any extreme or outrageous conduct on the part of defendants, or the intention on the part of defendants to cause emotional distress or reckless disregard for the probability of such. At most, Plaintiff have alleged rude behavior, which is not enough to support a cause of action for 1IED. #3 The Demurrer to Cause of Action No. 3 for Negligent Infliction of Emotional Distress (NIED) is Sustained, without leave to amend. “The negligent causing of emotional distress is not an independenttort, but the tort of negligence .... The traditional elements of duty, breach of duty, causation, and damages apply.” Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213. "Direct victim theory involves a duty owed directly to the plaintiff “that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”” Id. This cause ofaction is duplicative of the medical negligence cause of action. — Violati h fety C The Demurrer to Cause ofAction No. 4 for Violation of Health & Safety Code § 123100,et seq.,is Sustained, without leave to amend. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend,the plaintiff may amend his or her complaint only as authorized by the court's order. [Citations omitted.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” Harris v. Wachovia Mortg., FSB (2010) 185 Cal. App. 4th 1018, 1023. The new cause of action was not within the scope of the Court's prior order, and is therefore not allowed. A) Hoang Defendants’ Motion to Strike The Hoang Defendants’ unopposed Motion to Strike Portions of the FAC is Granted. If Plaintiff decides to file a Second Amended Complaint within the 10 day period required above, she must remove paragraph 79. “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damagesto befiled. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuantto Section 3294 of the Civil Code.” C.C.P. § 425.13. Plaintiff has not sought leave of the Court to allow for a claim for punitive damages in this medical negligence action. As such, the claims are inappropriate in the FAC, and therefore must be struck from the FAC. B) Nguyen'’s Demurrer Defendant Nguyen demurs to FAC COA # 2-4. These arguments are substantially similar as those made in the Demurrer by the Hoang Defendants, which has been discussed in detail, supra, and which need not be reiterated here. Defendant Nguyen's Demurrer to COA #2 is Sustained, with leave to amend in 10 days. Defendant Nguyen's Demurrers to COA #3 and #4 are Sustained, without leave to amend. A) Notice of Ruling Hoang Defendants to give notice. O O © N N N N w n hs e W N N O N O N N ON 2 I R V R E B IST « J I a 3 5 0 0 = = PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. 1am over the age of eighteen and not a party to the within action; my business address is 835 Wilshire Blvd., Suite 500, Los Angeles, California 90017. On June 25, 2018, I served the foregoing document described NOTICE OF RULING on the interested partiesin this action: X by placing true and correct copies thereof enclosed in sealed envelopes addressed as follows: PERSONAL & CONFIDENTIAL Thomas M. Peabody, Esq. Natalie J. Buccini, Esq. YEN HOANGDO Carroll, Kelly, Trotter, Franzen, McBride & 14592 Sheffield Street Peabody Westminster, CA 92683 225 Broadway, Suite 1575 (714) 716-3365 San Diego CA 92101 Plaintiffin Pro Per (619) 814-5900 / (6'9) 814-5999 Attorneysfor Defendant Myloc Nguyen, D.D.S. X BY MAIL. I caused such envelopes with postage thereon fully prepaid to be placed in the United States mail in the County ofLos Angeles. BY PERSONAL SERVICE. I caused such envelopes to be delivered by hand to the offices ofthe addressee. BYFACSIMILE. I caused such documents to be sent to the address above via the facsimile number indicated. I am “readily familiar” with this firm’s practice ofcollection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. postal service on that same day in the ordinary course ofbusiness. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. Executed on June 25, 2018, at Los Angeles, California. X (STATE) 1 declare under penalty ofperjury under the laws ofthe State of California that the above is true and correct. (FEDERAL) 1 declare that I am employed in the office ofa memberofthe bar of this court at whose direction the service was made. Aide Avila 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action; my business address is 835 Wilshire Blvd., Suite 500, Los Angeles, California 90017. On July 9, 2018, I served the foregoing document described DEFENDANTS RICHARD A. HOANG, D.D.S. AND RICHARD A. HOANG D.D.S,, INC. DBA ACE DENTAL OFFICE’S MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT on the interested parties in this action: X by placing true and correct copies thereof enclosed in sealed envelopes addressed as follows: PERSONAL & CONFIDENTIAL Thomas M. Peabody, Esq. Natalie J. Buccini, Esq. YEN HOANG DO Carroll, Kelly, Trotter, Franzen, McBride & 14592 Sheffield Street Peabody Westminster, CA 92683 225 Broadway, Suite 1500 yenhoangdol5@gmail.com San Diego CA 92101 (714) 716-3365 tmpeabody@cktfmlaw.com Plaintiffin Pro Per (619) 814-5900 / (6°9) 814-5999 Attorneysfor Defendant Myloc Nguyen, D.D.S. X BY MAIL. I caused such envelopes with postage thereon fully prepaid to be placed in the United States mail in the County of Los Angeles. BY ELECTRONIC MAIL. By electronically transmitting the document(s) listed above to the email address(es) of the person(s) set forth on the service list. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. Executed on July 9, 2018, at Los Angeles, California. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member ofthe bar of this court at whose direction the service was made. <7 Aide Avila 9 DEFENDANTS’ MOTION TO DISMISS THE ACTION FOR PLAINTIFF'S FAILURE TO FILE AMENDED COMPLAINT
