Opposition

Cal. Super. - 4th Dist.April 15, 2019

OW 0 0 NN NN nn A W N N O N O N N N N N DN m m m m p m mt e m e d p m e s e m N N nh B R A W N = O O 0 N N YN N R W Nd = O 28 Cummings, McClorey, Davis, Acho & Associates, P.C. 3801 University Avenue. Suite 560 Riverside, CA 92501 Telephone (951) 276-4420 Facsimile (951) 276-4405 RYAN D. MILLER (SBN 256799) JAMES A. HARRIS (SBN 312309) CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C. 3801 University Avenue, Suite 560 Riverside, CA 92501 (951) 276-4420 (951) 276-4405 fax Attorneys for Plaintiff Angelica Hermosillo SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE-CENTRAL JUSTICE CENTER Case No.: 30-2019-01063638—CU-MM-CJC ANGELICA HERMOSILLO, PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Plaintiff, VY. JERALD THANOS, M.D., DOES 1 TO 25, Defendants. Date: January 28, 2020 Time: 1:30 pm Dept.: C19 u s “u s “ u r “ a t “ w t “ m t “ s r “ w t “w m “a “a “ w r “ w t Plaintiff Angelica Hermosillo hereby submits the following memorandum of points and authorities in opposition to Defendant’s demurrer to Plaintiff's First Amended Complaint. Plaintiff also respectfully asks the Court to consider the following memorandum, despite being filed late due to a failure on the part of a legal assistant to calendar the advanced deadlines after the Court advanced the hearing on Defendants’ demurrer. (See Declaration of Maricela Bobadilla filed concurrently herewith.) L INTRODUCTION This litigation arises after Defendant Jerald Thanos, M.D. gave Plaintiff Angelica Hermosillo an extra 3 cm laceration to her body while he performed a medical procedure. Rather -1- OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT OO 00 NN S N nn hs Ww Nd N O N N N N N O N O N m m m m em e m m t p d p m pe d e d pe d N O N BA W N = O V 0 N N R A W NY = O 28 Cummings, McClorey, Davis, Acho & Associates, P.C. 3801 University Avenue, Suite 560 Riverside, CA 92501 Telephone (951) 276-4420 Facsimile (951) 276-4405 than stitching up the unplanned cut, Dr. Thanos sent Plaintiff on her way, bleeding internally. This resulted in additional surgery and prolonged recovery. Defendant’s demurrer argues that Plaintiff’s second cause of action fails to allege intentional conduct to support a cause of action for intentional tort. This argument fails as Dr. Thanos’ intent is alleged and Plaintiff is permitted in law to allege alternative theories of recovery. As a result, the instant demurrer should be overruled. IL PLAINTIFF'S SECOND CAUSE OF ACTION IS SUFFICIENTLY PLED A. Plaintiff is Allowed to Plead General Facts in Support of Intentional Tort(s) Defendant’s demurrer argues the second cause of action is deficient because it alleges similar facts to support a different and cause of action. The demurrer claims: “no independent cause of action for “intentional tort” and the elements of an actual tort are not alleged ...” Defendant’s argument here is misplaced. Defendant relies on Brea v. McGlashan (1934) 3 Cal.App.2d 454, in his demurrer asserting the court explained there must a specific cause of action. However, upon further reading the court explained later in the opinion that although the cause of action was not named in a particular manner there was enough information to make out claims with sufficient particularity. (Id. at p. 461.) Furthermore, Plaintiffs are entitled at the pleadings stage to assert claims in the alternative, regardless of their consistency. “We acknowledge a party is permitted-sometimes encouraged-to plead alternative and inconsistent theories in a given proceeding...” (International Billing Services, Inc. v. Emigh (2000) 84 Cal. App.4th 1175, 1188.) “[W]hen for any reason the pleader thinks it desirable so to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff's right and defendant's liability depend on facts not well known to the plaintiff, his pleading may set forth the same cause of action in varied and inconsistent counts with strict legal propriety.” (ZTanforan v. Tanforan (1916) 173 Cal. 270, 273.) Moreover, “[a] plaintiff may plead inconsistent, mutually exclusive remedies, such as breach of contract and specific performance, in the same complaint.” (Walton v. Walton (1995) 31 Cal.App.4th 277, 292.) Alternative theories of common law negligence and statutory liability may be pleaded in a 2- OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT OO 00 NN S N Wn RA W N N O N N O N ND O N N O N rr o e m e d e m p m pe d e m e m e m ~~ O N Wn RA W N = O N D 0 0 N O N NN l w N = Oo 28 Cummings, McClorey, Davis, Acho & Associates, P.C. 33801 University Avenue, Suite 560 Riverside, CA 92501 Telephone (951) 276-4420 Facsimile (951) 276-4405 single count (Citation) or in separate counts (Citation)... (Landeros v. Flood (1976) 17 Cal.3d 399, 413.) The alternative theory of pleading permits Plaintiff to allege even mutually exclusive causes of action. Therefore, the primary rights theory does not support the sustaining of a demurrer here. B. Intentional Conduct on the Part of Defendant is Identified in the Second Cause of Action To be viable, a cause of action must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “It has been consistently held that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Citation) (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal. App.4th 1076, 1099.) Plaintiff’s second cause of action meets this standard. Defendant’s demurrer argues that the second cause of action of Plaintiff's FAC fails to |’ allege any intentional conduct, making it susceptible to demurrer. However, defendant failed to see that in Plaintiffs FAC, defendants’ intent is explicitly plead. The second cause of action of Plaintiff’s FAC cites the following facts, with intentional acts bolded: ... Defendants intentionally, and without permission, also cut Angelica Hermosillo's rectum with a scalpal, or other cutting device, which created a 3 centimeter gash. Instead of repairing the gash, Defendants purposefully ignored the gash and then intentionally closed the surgical site, knowing that a further surgery would be necessary. ... 1 Hn i =e OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 1 2 3 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 Cummings, McClorey, Davis, Acho & Associates, P.C. 3801 University Avenue, Suite 560 Riverside, CA 92501 Telephone (951) 276-4420 Facsimile (951) 276-4405 III. CONCLUSION For the reasons set forth herein, Defendant’s demurrer should be overruled. Dated: January 22, 2020 CUMMINGS, MCCLOREY, DAVIS, ACHO & ASSOCIATES, P.C. CR RyapMilfer, Esq. Attorneys for Plaintiff Angelica Hermosillo By: -4- OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT 1 2 3 4 b 6 7 8 9 10 11 12 13 14 15 16 17 8 19 20 21 22 23 24 25 26 27 28 Cummings, McClorey, Davis, Acho & Associates, P.C. 3801 University Avenue, Suite 560 Riverside, CA 92501 Telephone (951) 276-4420 Facsimile (951) 276-4405 PROOF OF SERVICE HERMOSILLO v. THANOS Case No. 30-2019-010636338-CU-MM-CJC I, the undersigned, declare as follows: I am employed in the County of Riverside, State of California. I am over the age of 18 years, and not a party to the within action. I am an employee of or agent for Cummings, McClorey, Davis, Acho & Associates, P.C., 3801 University Avenue, Suite 560, Riverside, California 92501. On January 22, 2020, I served the foregoing document(s): PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT on the following party(ies) in this action addressed as follows: LAWRENCE D. WONG, ESQ. LISA M. AGRUSA, ESQ. SCHMID & VOILES 333 CITY BOULEVARD WEST, STE. 720 ORANGE, CA 92868 [] (BY MAIL) 1 caused a true copy of each document, placed in a sealed envelope with postage fully paid, to be placed in the United States mail at Riverside, California. I am “readily familiar” with this firm’s business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the U.S. Postal Service on that same day. I understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in this affidavit. [XXX] (BY PERSONAL SERVICE) Each such document listed was delivered by hand to each addressee listed by messenger service. Executed on January 22, 2020, in Riverside, California. [ declare under penalty of perjury under the laws of the State of California that the above is true and correct. Wi NNT Maricela Bobadilla -5- OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT