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Complaint Information

oS Jeffrey S. Mitchell, Esq. SBN: 188751 ” fl: E D‘ Rebecca Byrmne, Esq SBN: 139893

MITCHELL LAW GROUP | _

2001 Union Street, Suite 397 DEC 29 20

San Francisco, CA 94123 FRESNO SU ' Tel. (415) 692-7540/Fax: (415) 276-9099 PERIOR COURT

Anthony S. Petru, Esq. SBN: 91399 HILDEBRAND, McLEOD & NELSON, LLP 350 Frank H. Ogawa Plaza, 4" Floor

Oakland, CA 94612-2006

Tel.: (510) 451-6732/Fax: (510)465-7023

Steven A. Heimberg, Esq. SBN: 127413

Marsha E. Barr-Fernandez, Esq. SBN: 200896

James West, Esq. SBN: 282076 19CECG03508 HEIMBERG BARR LLP Opposition flled

e 1500 Los Angeles, Cahfomla 90017

SUPERIOR COURT OF THE STATE OF CALIFORNIA DEPUTY

Tel.: (213) 213-1500/Fax: (213)213-1520

Attorneys for Plaintiffs

- FOR THE COUNTY OF FRESNO

MARIA A. ARTEAGA ALVAREZ, ) CASE NO.: 13CECG03906 individually, and SILVINO PEREZ, by [Assigned to the Hon. Jeff Hamilton] and through his Guardian ad Litem,

CRISTOBAL ARTEAGA PLAINTIFEFS’ OPPOSITION TO DEMURRER TO THE THIRD

Plaintiffs, AMENDED COMPLAINT BY Vs. ASHWIN BHATT, M.D. AND

| COMMUNITY ANESTHESIA FRESNO COMMUNITY REGIONAL ) PROVIDERS

MEDICAL CENTER; PERVAIZ Z. ) o CHAUDHRY,M.D.; VALLEY % DATE: January 12, 2016 CARDIAC SURGERY MEDICAL TIME: 3:30 p.m. GROUP; and DOES ONE through ) DEPT: 402 TWENTY-FIVE, Inclusive, % Defendants. )

TO THE COURT, THE PARTIES, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs MARIA A. ARTEAGA ALVAREZ, individually, and SILVINO PEREZ, by and through his Guardian ad Litem, CRISTOBAL ARTEAGA, hereby oppose Defendants Ashwin Bhatt, M.D. and

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DATED: December 29, 2015

O ® TABLE OF CONTENTS

INTRODUCTION ..ovvooeeeeeesesseemmssmssssssssssnsessesesas e enessrre 3 STANDARD OF REVIEW ooooooeovevooeesseseeesssssesesssessseessssssesessssssssssssssssssesssssssssssessssens 4

PLAINTIFFS’ HAVE PLED THEIR FIRST CAUSE OF ACTION FOR NEGLIGENCE AND SEVENTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM WITH

SUFFICIENT CERTAINTY oiiicreiicreereneeniniieisieerininesisesssstesssnsssnnsmnensannassssssssenssesassas 5

PLAINTIFFS FOLLOWED PROPER PROCEDURE IN AMENDING THEIR

COM P L AINT ..o everesitesesteessseessssaersesesresesesssanssesaassassasssesasstesbssasabssasaa s et e sesatsasasnssnnns 6

A ASSUMING, ARGUENDO, AMENDMENTS ARE WARRANTED, PLAINTIFFS WERE NOT ABLE TO MAKE THEM EARLILER.

B THE COMPLAINT IS NOT SUBJECT TO A SPECIAL DEMURRER BASED ON THE PROPRIETY OF THE DOE AMENDMENT BECAUSE PLAINTIFFS

PROPERLY EMPLOYED THE DOE AMENDMENT PROCESS.

SHOULD THE COURT SUSTAIN DEFENDANT’S DEMURRER, PLAINTIFFS

REQUEST LEAVE TO AMEND....cocccc.0vcercreeeceennees e, 3

CONCLUSION........... et e 9

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TABLE OF AUTHORITIES CALIFORNIA CASES

Adams v. Paul (1995) 11 Cal.dth 583.....ciiiiiiii e 6 Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962 ......ccovvviirerivecviriuennnes e 8 Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596.........cocevvimerinininninnnnnn 8 Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599 e eereeeerreenreaaaenesaesaanenses 5 Cossman v. Daimler Ch;'ysler Corp., et al. (2003) 108 Cal.App.4th 370.....cccnimmiioricrriricninnnne. 4 Hendy v. Losse (1991) 54 Cal.3d 723..........Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298 ...coeuvniiniinnsinininininnsnnisensenen: 5 Khoury v. Maly’s of California (1993) 14 Cal. App.4th D12 eeeeeeeeeeeiieeeaeeeeeaeeesenassecearesssbasaaens 5 Ludgate v Lockeed Martin Corp. (2000) 82 Cal.App.4th 592 4,5 McOwen v. Grossman (2007) 153 Cal. App.4th 937.....ovinenvinniininnnnen. " evnenenes veienndd Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal. App.4th 1395.......cooiiiiniiiiiiininnnns oo Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642.......... e e . 41 Pérkins v. Sup. Ct. (1981) 117-Cal. App3d L......covvnnnss e e, e 4 Redevelopment Agency v. Herrold (1978) 86 Cal APP.3d 1024...vvoevvsvrssesscnssnssnrssnsne 9 Williams v. Beechnut Nutrition Corp., (1986) 185 Cal.App.3d 135.....ccccevenine. ceerreeesaeearenaennns 4

STATUTES

Code of Civil Procedure §T:19........ovvviniiiiiiiiiiiiiiiiiiii e 6 Code of Civil Procedure Ty g R RCAEREELLLLLS 7,8

COURTRULES |

California Rules of Court, RUIE 2.112. .. ueuinieeiiniiiiieie et 5 Fresno Cbunty LL0CAl RULE 2.7, 2 e ettt ettt e e e etsan e sanaaa et eaastsnaeesansaa et csanes 7

TREATISES |

5 Witkin, Cal. Procedure (3d ed. 1985) Pleading §1121 .o, 8

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U ¢ MEMORANDUM OF POINTS AND AUTHORITIES

L. FACTUAL INTRODUCTION

This suit arises out of an aortic valve repair and replacement surgery attempted on Plaintiff Silvino Perez at Defendant Community Regional Medical Center on April 2, 2012, leading to permanent brain damage and other catastrophic injuries. Defendant Pervaiz Chaudhry, M.D. was designated as the cardiothoracic surgeon for the surgery. Defendant Aswhin Bhatt, M.D. was the anesthesiologist during the surgery and was acting as an agent or employee of his medical group, Defendant Community Anesthesia Providers, during the surgery.

After filing their Complaint against Dr. Chaudhry and hospital defendants, Plaintiffs became aware during Dr. Chaudhry’s deposition that moving Defendants needed to be named as Defendants. Dr. Chaudhry testified, in essence, that he depended

on Dr. Bhatt to give him information about blood clotting tests and factors that indicate a

| propen51ty for the patient to bleed abnormally, which may lead to the patlent S

detenoratlon This is relevant because Dr. Chaudhry contends that abnormal bleeding factors may have contributed to Mr. Perez s decline and subsequent injuries. If one assumes Dr. Chaudhry’s position is true (which Plaintiffs do not), Dr. Bhatt is implicated for not providing sufficient information to Dr. Chaudhry to help prevent the deterioration. Plaintiffs are informed and believe that Dr. Bhatt’s medical group, Community Anesthesia Providers, is also vicariously liable for Dr. Bhatt’s actions. This pleading 1s proper because Plaintiffs are allowed to plead inconsistent and even contradicting theories.

Following Dr. Chaudhry’s testimony, Plaintiffs sought and obtained Court Orders substituting them as Does 5 and 6. Although Plaintiffs amended their Complaint atter making these Doe substitutions, all versions of Plaintiffs’ Complaint, including the operative Third Amended Complaint, effectively plead theories of wrongdoing against moving Defendants with snfficient certainty. Plaintiffs allege that Defendants, including

NEGLIGENCE AND SEVENTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM WITH SUFFICIENT CERTAINTY

Plaintiffs’ Third Amended Complaint states causes of action for negligence and loss of consortium that are pled with sufficient certainty against moving Defendants. In the first cause of action for negligence, Plaintiffs explicitly state that the cause of action is pled against “Defendants, and each of them” (TAC 923); that the negligent conduct mentioned pertains to “Defendants, and each of them™ (TAC 924); and that Plaintiffs’ injuries resulted from Ithe conduct of “Defendants, and each of them” (TAC {929, 30, 31, 32.) The Third Amended Complaint also indicates that the group of Defendants to which it is directed include Does One through Twenty-Five, explaining that the true names of those defendants will be substituted once they are realized through the very process Plaintiffs used to add moving Defendants as Does to this action. Plaintiffs have thus

complied with all requirements of Rule 2.112 of the California Rules of Court, and the

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hearing. In order to make substantive changes to the Complaint, however, Plaintiffs had to file a motion to amend. Plaintiffs submitted to the Court their Motion for Leave to Amend to add punitive damages on July 31, 2015, but they did not receive the Order adding Defendant Dr. Bhatt as a Doe Defendant until July 30, 2015 and their Order adding Community Anesthesia Providers until even later. The Order granting Plaintiffs’ Motion for Leave to Amend was not issued until October 22, 2015, and Plaintiffs were not authorized to make additional substantive changes based on the Order being limited to the issues raised in the Motion for Leave to Amend. |

Therefore, even if one assumes that the amendments moving Defendafité are requesting are required (which Plaintiffs do not concede), it was impossible for Plaintiffs to seek those amendments in their recent Motion for Leave to Amend. It was also improper for Plaintiffs make any améndments relating to moving Defendants after the Court’s Order was issued because those amendments would go beyond the Cofirt’s Order specifying what amendments were allowed.

B. The Complaint Is Not Subject to a Special Demurrer Based on the Propriety of the Doe Amendment Because Plaintiffs Properly Eniployed the Doe Amendment Process.

California Code of Civil Procedure section 474 states, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” A plaintiff is “ignorant of the name of a defendant” not onlyignorant of the Defendant’s identity but also when he or he is ignorant of the facts giving rise to the case of action against that defendant. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943.) Fresno County Local Rule 2.7.2 provides the proper procedure for Doe amendments by specifying they can be made via an ex parte application without a hearing. A plaintiff is not required to make any additional amendments or changes other