This case was last updated from Los Angeles County Superior Courts on 10/22/2020 at 11:21:07 (UTC).

NATALIE WEST VS JAY W CALVERT ET AL

Case Summary

On 05/31/2018 NATALIE WEST filed a Personal Injury - Other Personal Injury lawsuit against JAY W CALVERT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and STEPHEN M. MOLONEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8415

  • Filing Date:

    05/31/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

STEPHEN M. MOLONEY

 

Party Details

Plaintiff and Cross Defendant

WEST NATALIE

Defendants and Respondents

ROXBURY CLINIC AND SURGERY CENTER INC

DOES 1 TO 50

USC CARE MEDICAL GROUP INC.

CALVERT JAY W.

KECK GRADUATE INSTITUTE OF APPLIED LIFE S

PULVER LISA CRNA

ROXBURY CLINIC AND SURGERY INC.

CALVERT JAY W. AKA JEFFREY SZEM M.D.

SEDATES INC.

ROXBURY SURGICAL ASSOCIATES

UNIVERSITY OF SOUTHERN CALIFORNIA

SPALDING OUTPATIENT SURGERY CENTER INC.

HAMMOUDEH ZIYAD

JAY CALVERT M.D INC.

CALVERT JAY W. M D.

ROX SURGERY CENTER NEWPORT BEACH LLC AN ORGANIZATION

Defendants and Cross Plaintiffs

JAY CALVERT M.D INC.

CALVERT JAY W. M D.

CALVERT JAY W. M.D.

Not Classified By Court

ROX SURGERY CENTER NEWPORT BEACH LLP

Attorney/Law Firm Details

Plaintiff Attorneys

RUDD CHRISTOPHER LEE

Attorney at The Rudd Law Firm, a P.C.

15233 Ventura Blvd Ste 320

Sherman Oaks, CA 91403

HAKALA LESLIE

MCELWAINE-LETO ALICIA

Defendant, Respondent and Cross Plaintiff Attorneys

DOYLE SCHAFER MCMAHON LLP

IACOPINO ROBERT J

PALIN CYNTHIA

DOUVILLE LOUISE

LAW YUK

DEHERAS DOUGLAS SEAN

 

Court Documents

Reply - REPLY TO ANTI-SLAPP MOTION TO STRIKE

1/3/2020: Reply - REPLY TO ANTI-SLAPP MOTION TO STRIKE

Motion for Protective Order

12/16/2019: Motion for Protective Order

Cross-Complaint - OF JAY W. CALVERT, M.D. AND JAY CALVERT, M.D., PROFESSIONAL CORPORATION AGAINST CROSS-DEFENDANTS NATALIE WEST AND ROES 1-20 1. DEFAMATION 2. BREACH OF CONTRACT 3. INTENTIONAL INFLICT

5/24/2019: Cross-Complaint - OF JAY W. CALVERT, M.D. AND JAY CALVERT, M.D., PROFESSIONAL CORPORATION AGAINST CROSS-DEFENDANTS NATALIE WEST AND ROES 1-20 1. DEFAMATION 2. BREACH OF CONTRACT 3. INTENTIONAL INFLICT

Amended Complaint

5/10/2019: Amended Complaint

Demurrer - without Motion to Strike -

10/12/2018: Demurrer - without Motion to Strike -

DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

9/14/2018: DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

DECLARATION OF TRIAL COUNSEL ON BEHALF OF DEFENDANT JAY W.CALVERT M.D.

8/21/2018: DECLARATION OF TRIAL COUNSEL ON BEHALF OF DEFENDANT JAY W.CALVERT M.D.

SUMMONS -

5/31/2018: SUMMONS -

1. SEXUAL BATTERY ;ETC

5/31/2018: 1. SEXUAL BATTERY ;ETC

Brief - BRIEF (SUPPLEMENTAL) IN OPPOSITION TO ROXBURTY CLINIC AND SURGERY CENTER, INC.'S MOITON FOR SUMMAY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

9/4/2020: Brief - BRIEF (SUPPLEMENTAL) IN OPPOSITION TO ROXBURTY CLINIC AND SURGERY CENTER, INC.'S MOITON FOR SUMMAY JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION

Notice - NOTICE NOTICE OF ENTRY OF ORDER

3/13/2020: Notice - NOTICE NOTICE OF ENTRY OF ORDER

Answer

2/27/2020: Answer

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT

1/14/2020: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT

1/13/2020: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT

Case Management Statement

10/25/2019: Case Management Statement

Demurrer - without Motion to Strike

8/1/2019: Demurrer - without Motion to Strike

Answer

7/11/2019: Answer

Proof of Service by Mail

5/20/2019: Proof of Service by Mail

215 More Documents Available

 

Docket Entries

  • 06/28/2021
  • Hearing06/28/2021 at 09:00 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Jury Trial

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  • 06/18/2021
  • Hearing06/18/2021 at 09:00 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Final Status Conference

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  • 04/26/2021
  • Hearing04/26/2021 at 08:30 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Status Conference

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  • 09/23/2020
  • Docketat 08:30 AM in Department P; Case Management Conference - Held

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  • 09/23/2020
  • Docketat 08:30 AM in Department P; Hearing on Motion for Summary Judgment - Held - Motion Denied

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  • 09/23/2020
  • Docketat 08:30 AM in Department P; Hearing on Motion for Summary Judgment ((Roxbury)) - Held - Motion Denied

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  • 09/23/2020
  • DocketOrder (order appointing court approved Irene Kubert CSR#10105); Filed by University of Southern California (Defendant)

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  • 09/23/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment; Hearing on Motion for...)); Filed by Clerk

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  • 09/09/2020
  • DocketCase Management Statement; Filed by Natalie West (Plaintiff)

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  • 09/08/2020
  • DocketCase Management Statement; Filed by Jay Calvert, M.D, Inc. (Defendant)

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298 More Docket Entries
  • 08/21/2018
  • DocketNOTICE OF COMMENCEMENT OF MANDATORY MEET AND CONFER ON BEHALF OF DEFENDANT JAY W. CALVERT M.D. BEFORE FILING OF DEMURRER AND MOTION TO STRIKE

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  • 08/21/2018
  • DocketNOTICE OF POSTING JURY FEES ON BEHALF OF DEFENDANT JAY W.CALVERT M.D.

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  • 08/21/2018
  • DocketReceipt; Filed by Jay W. Calvert (Defendant)

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  • 08/21/2018
  • DocketNotice; Filed by Jay W. Calvert (Defendant)

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  • 08/21/2018
  • DocketDeclaration; Filed by Jay W. Calvert (Defendant)

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  • 08/21/2018
  • DocketNotice; Filed by Jay W. Calvert (Defendant)

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  • 08/21/2018
  • DocketDECLARATION OF TRIAL COUNSEL ON BEHALF OF DEFENDANT JAY W.CALVERT M.D.

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  • 05/31/2018
  • Docket1. SEXUAL BATTERY ;ETC

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  • 05/31/2018
  • DocketComplaint; Filed by Natalie West (Plaintiff)

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  • 05/31/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC708415    Hearing Date: September 23, 2020    Dept: P

 

Tentative Ruling

Natalie West v. Jay W. Calvert, M.D. et al., Case No. BC708415

Hearing Date September 23, 2020

Defendants USC and Roxbury’s Supplemental Briefing re: Motion for Summary Judgment

On July 13, 2020 the court issued a tentative ruling denying USC and Roxbury’s motions for summary judgment. After oral argument, the court allowed the parties to submit supplemental briefing on the medical battery cause of action.

USC

USC argues its new evidence shows Dr. Calvert was not acting as USC’s agent or training USC residents when he performed surgery on plaintiff, precluding liability. Dr. Calvert stated at deposition he does not remember any USC residents present during plaintiff’s surgeries and only he performed surgeries on plaintiff. Therefore, USC argues, Dr. Calvert was not providing educational services to USC residents when the surgeries were performed, so he was not acting as USC’s agent.

This is uncertain; Calvert does not explicitly state residents were not present during the surgeries, only that he does not remember whether they were present. This is insufficient to shift the burden on summary judgment. The tentative ruling will be the final ruling as to USC. DENIED.

Roxbury Clinic

Defendant Roxbury Clinic argues plaintiff admitted to signing consent forms which authorized billing of plaintiff’s insurance providers. Additionally, the declarations of Drs. Calvert and Hammoudeh stating Dr. Hammoudeh did not perform any surgery on plaintiff are sufficient to shift the burden to plaintiff. Roxbury argues plaintiff’s declarations are insufficient to establish a triable issue of fact as to the elements of the causes of action or Roxbury’s vicarious liability.

The court addressed this evidence in its initial tentative ruling. Plaintiff denies signing the consent documents and presented evidence via declaration that she suffered medical battery. This is sufficient to create a triable issue of fact as to both causes of action. The tentative ruling will be the final ruling as to Roxbury. DENIED.

BECAUSE OF THE ONGOING COVID-19 PANDEMIC, COUNSEL AND PARTIES ARE ENCOURAGED TO AVOID IN-PERSON APPEARANCES AT COURT AND TO APPEAR VIA LA COURT CONNECT.

Case Number: BC708415    Hearing Date: July 13, 2020    Dept: P

 

Tentative Rulings

Natalie West v. Jay W. Calvert, M.D. et al., Case No. BC708415

Hearing Date: July 13, 2020

Motion #1: Defendant USC’s Motion for Summary Judgment

Plaintiff alleges she received negligent surgical care and treatment from defendants Jay W. Calvert, M.D. and Ziyad Hammoudeh, M.D. Plaintiff also alleges defendants performed unnecessary procedures on her nose to obtain extra billing and allowed students to perform the surgeries, causing disfigurement. Plaintiff alleges the doctor defendants were agents of defendant USC. Defendant USC argues neither doctor was acting as its agent and moves for summary judgment.

An agency relationship exists when one person assents to act on another’s behalf and subject to their control. Huong Que, Inc. v. Mui Luu (2007) 150 Cal.App.4th 400, 410. The chief characteristic of agency is “that of representation, the authority to act for and in the place of the principal[.]” Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1105. Consideration is not required to create an agency relationship. Malloy v. Fong (1951) 37 Cal.2d 356, 372.

Defendant USC argues Hammoudeh and Calvert were not its agents. The declaration of Mark Urata, M.D. states “Dr. Calvert was a voluntary unpaid faculty member of USC who did not operate on patients at USC and was not compensated by USC. Throughout the timeframe at issue, Dr. Calvert in his role as a voluntary faculty member did provide guidance and education to residents of USC’s program in aesthetic surgery,” and “Dr. Ziyad Hammoudeh was a fellow in the aesthetic fellowship run by Dr. Calvert . . . Dr. Hammoudeh was not employed by or compensated by USC.” Urata decl., paras. 4, 5.

This is insufficient to carry USC’s initial burden on summary judgment. USC argues, based on Urata’s declaration, that Calvert was not an agent of USC, but provides no authority for that conclusion. As consideration is not required to create an agency relationship, Calvert’s “unpaid” status is not dispositive of the agency issue. Further, Urata states Calvert was a “faculty member of USC,” and he “did provide guidance and education to residents of USC’s program in aesthetic surgery[.]” This suggests Calvert may have been acting on USC’s behalf when providing education to residents and may have been subject to USC’s control in his capacity as a faculty member. Further, if plaintiff’s allegation that Calvert used her surgeries as a means for students to practice their skills is proven at trial, such acts would have occurred within the context of his role providing “guidance and education to USC’s program in aesthetic surgery,” potentially creating vicarious liability for USC.

In reply, USC conflates the concepts of “employment” and “agency.” USC argues because Calvert was unpaid, he was not an employee, so not an agent. However, the key elements of a principal-agent relationship are the agent agreeing to act on behalf of the principal and the principal’s control. Consideration is not one of these elements, and USC provides no authority for the proposition that a volunteer’s acts cannot create liability for his principal. There is a triable issue of fact as to whether Calvert was USC’s agent and whether he was acting within the scope of his agency when plaintiff was injured. Motion DENIED.

Motion #2: Defendant USC’s Motion for Order Requiring Undertaking (Cal. Code of Civ. Proc. §1030)

Under Cal. Code of Civ. Proc. §1030, when an out of state plaintiff sues an in-state defendant, the court shall order that the plaintiff files the undertaking as security for costs and attorney’s fees if there is a reasonable possibility the moving defendant will obtain judgment. A court may waive the requirement of an undertaking if the plaintiff shows indigency. Balatayan v. Getelmen (2001) 90 Cal.App.4th 1427, 1431.

Plaintiff admits she resides in Utah. Defendant presents evidence that neither Calvert nor Hammoudeh were direct agents of USC because the surgeries were not performed at USC-owned facilities and neither doctor was paid by USC. See Yarvis Decl., Exh. C. Plaintiff concedes these points, stating “a lack of consideration and volunteer status may be factors to consider in the determination of whether an actual agency relationship exists[.]” Opp. at pg. 3.

Plaintiff argues there is a triable issue of fact as to agency, so defendant fails to establish the absence of agency as a matter of law. This misapplies the standard for an undertaking under §1030. A defendant need not prove she will definitely prevail, only that there is a “reasonable possibility” of prevailing. The existence of evidence unfavorable to the defendant does not automatically defeat a §1030 motion. Defendant makes the required showing, and plaintiff’s opposition does not meaningfully dispute that. GRANTED. Plaintiff will obtain and file an undertaking of $31,055 within 30 days; proof of such is to be filed with the court on or before August 13, 2020.

Motion #3: Defendant Roxbury Surgical Associates’ Motion for Summary Judgment

Defendant Calvert performed surgeries on plaintiff at a facility owned and/or managed by defendant Roxbury Surgical Associates, which moves for summary judgment or adjudication as to the fraud and medical battery claims.

Evidentiary Objections

Objections SUSTAINED as to exhibits C-E to the Castaneda declaration. Lack of authentication, hearsay. SUSTAINED as to objections 2 and 14 to the West declaration. Opinion and lack of foundation. OVERRULED as to all other objections.

Fraud

Plaintiff’s fraud claim alleges defendants falsely represented that insurance would not cover any charges for operating rooms or anesthesia, wrongfully billed for a procedure Hammoudeh (not Calvert) performed and submitted false claims to plaintiff’s insurer. TAC at ¶¶60-64. Roxbury argues plaintiff presents no evidence Roxbury made false representations and submits multiple signed consent forms, each stating Roxbury would bill plaintiff’s insurance company. Defendant’s exhibits 1-9. This is sufficient to meet Roxbury’s initial burden and shift the burden to plaintiff.

In opposition, plaintiff argues “Roxbury mistakenly contends that Plaintiff’s fraud claim centers around a double-billing scheme . . . Plaintiff’s fraud claims are instead about the unconsented-to procedures performed on Plaintiff[.]” Opp. at pg. 6. However, the fraud cause of action only mentions the following misrepresentations:

- “[Defendants] represented to plaintiff that her health insurance would not cover any

charges for operating rooms or anesthesia,” and

- “[Defendants] failed to disclose to plaintiff that they were submitting fraudulent claims to her health insurers,” Third Amended Complaint at ¶¶60, 61.

The alleged unconsented-to procedures are only relevant to plaintiff’s fraud claim to the extent they prove the alleged fraudulent billing schemes. Plaintiff’s characterization of her fraud claim is inaccurate. Plaintiff argues Roxbury is vicariously liable for “Dr. Calvert’s statements to Plaintiff regarding the procedures he was going to perform and who was going to perform them” under an agency theory. Opp. at pgs. 6-7. Roxbury’s self-authenticating corporate statement of information that Calvert was acting as an agent of the clinic when he treated plaintiff, as well plaintiff’s testimony that Calvert performed the surgery at the Roxbury Clinic meets the burden regarding a claim of agency. See Plaintiff’s Exhibit B, West Declaration ¶¶6-7. However, plaintiff produces no evidence that Calvert or any other Roxbury agent told her insurance would not cover her surgery.

Plaintiff presents evidence that she paid defendants’ fee out-of-pocket, after which defendants allegedly double-billed plaintiff’s insurance company. West decl. ¶¶6, 9. Though there is no allegation that Calvert made direct misrepresentations regarding billing, this raises a material question as to whether Roxbury concealed an intent to bill plaintiff’s insurance company while also accepting her out-of-pocket payment. Roxbury argues the consent forms (Exh. 1-9) show there was no concealment, but plaintiff denies signing the forms. West decl. ¶¶13-22. This denial, along with plaintiff’s declaration that she was double-billed, creates a triable issue of fact as to whether Roxbury wrongfully concealed its intent to bill plaintiff’s insurer after accepting plaintiff’s out-of-pocket payment. Summary adjudication DENIED.

Medical Battery

A cause of action for medical battery occurs “where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment.” Cobbs v. Grant (1972) 8 Cal.3d 229, 239. Roxbury argues the evidence shows plaintiff consented to all surgeries, and Hammoudeh did not perform any treatment which was not consented to. MSJ, pg. 13:8-20. Roxbury fails to cite to any specific evidence, separate statement, declaration or exhibit. It only generally refers to “available competent evidence.” This is insufficient to carry Roxbury’s initial burden on summary adjudication; it must identify specific evidence in support of its motion. The court need not reach plaintiff’s argument. DENIED.

Statute of Limitations

An action for battery is subject to a two-year statute of limitations. Code of Civ. Proc. §335.1. A cause of action for fraud has a three-year statute of limitations. Code of Civ. Proc. §338(d). Both statutes start running when a plaintiff has information that would put a reasonable person on inquiry notice that their injuries were caused by defendant’s wrongdoing. E.g. Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373-1374.

This action was filed on May 31, 2018. Defendant argues the statute of limitations should bar all claims of fraud prior to May 31, 2015 and all claims of medical battery occurring before May 31, 2016. Plaintiff presents evidence she did not discover “defendants had done something wrong to her,” until August 29, 2017. This creates a triable issue of fact as to when the statute of limitations for medical battery began running. West decl. ¶11. As explained, the fraud claims are based on alleged fraudulent billing. Plaintiff presented no evidence supporting her delayed discovery of the alleged billing scheme. Summary adjudication GRANTED as to all instances of fraud occurring prior to May 31, 2015. DENIED as to medical battery claims.

DUE TO THE ONGOING COVID-19 PANDEMIC, THE COURT STRONGLY ENCOURAGES THE PARTIES TO APPEAR REMOTELY, VIA COURT CALL. THANK YOU.

Case Number: BC708415    Hearing Date: January 30, 2020    Dept: P

 

Tentative Ruling

Sean Simms v. Deutsche Bank National Trust Co. Case Number 19STLC08429

Hearing Date: January 30, 2020

Defendant Deutsche Bank’s Demurrer to Complaint

Plaintiff alleges he entered into a lease agreement with his building’s previous owner in April 2016 and the building was later purchased by Deutsche Bank, which confirmed the lease’s term and accepted plaintiff as a continuing tenant. Plaintiff alleges he has been prevented from using a garage and sues for declaratory relief regarding his right to possession of the garage.

Defendant argues it is not a party to the lease. Plaintiff alleges Deustche Bank “acknowledged all terms to [plaintiff’s] lease,” including provisions related to the garage. For purposes of pleading, this allegation is treated as true. While this may be a question of fact, it is not properly decided on demurrer.

Deustche also argues plaintiff does not allege any misconduct by Deutsche. As “misconduct” is not an element of a declaratory relief claim, its absence is irrelevant.

Deustche argues the lease expired on its own terms as of March 31, 2019. However, per Cal. Civ. Code §1945, parties to a lease are “presumed to have renewed the hiring on the same terms and for the same time,” if the lessee remains in possession after expiration of the lease term and lessor continues accepting rent. Cal. Civ. Code §1945. As plaintiff alleges he continues to pay rent and remains in possession (Complaint at ¶12), whether the lease has expired or been renewed is a question of fact.

Defendant argues plaintiff cannot allege existence of an actual, present controversy because Deutsche engaged in no wrongful conduct and the purported lease agreement no longer exists. The court addressed those arguments above.

Defendant argues declaratory relief operates prospectively and cannot be used to redress past wrongs. Plaintiff seeks a declaration of the parties’ rights and obligations regarding use of the garage. This is a proper subject for declaratory relief.

Finally, defendant argues plaintiff has not sufficiently alleged damages. Damages are not a required element of declaratory relief, nor are they recoverable in a declaratory relief action.

The demurrer is OVERRULED. The court will, on its own motion strike the plaintiff’s request for damages (page 4, paragraph 4), without leave to amend.

Case Number: BC708415    Hearing Date: January 16, 2020    Dept: P

 

Natalie West v. Jay W. Calvert, M.D. et al. Case No. BC708415

Cross-defendant West’s Special Motion to Strike (anti-SLAPP motion)

Hearing Date: 1/16/2020

Defendants Jay W. Calvert, M.D. and Jay Calvert, M.D. Professional Corporation cross-complained, alleging West committed defamation by filing the lawsuit and publicizing the allegations on a news broadcast. The cross-complaint also includes causes of action for intentional infliction of emotional distress and breach of contract. West moves to strike under California’s anti-SLAPP statute (Cal. Civ. Code §425.16), arguing Calvert’s allegations arise out of West’s protected speech.

Legal Standard (Anti-SLAPP)

Courts resolving an anti-SLAPP motion follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, 31 Cal.4th at 733.

Conduct “in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is protected by the anti-SLAPP statute. Kashian v. Harriman (2002) 98 Cal. App.4th 892, 905. Courts construe “an issue of public interest” broadly; any issue in which the public is interested constitutes an issue of public interest. Nygard v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1044. Speech that “either concerned a person or entity in the public eye, conduct that could directly affect a large number of people beyond the direct participants, or a topic of widespread, public interest” is protected by the anti-SLAPP statute. Century 21 Chamberlain & Assoc. v. Haberman (2009) 173 Cal.App.4th 1, 9.

Under the second prong, the burden shifts to plaintiff to prove she has a legally sufficient claim and to prove with admissible evidence a probability she will prevail. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To fulfill prong two, plaintiff cannot rely on the complaint’s allegations, but must produce admissible evidence. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th.

First Prong – Protected Activity

To the extent the cross-complaint is based on West’s filing her lawsuit, the first prong is satisfied. Filing a lawsuit falls under the constitutional right to petition and is protected activity. However, whether plaintiff’s appearance on national television to publicize her allegations constitutes protected activity is a different analysis. West argues the anti-SLAPP statute applies to her public media statements because Calvert is “in the public eye,” and potential misconduct by USC-affiliated doctors is an issue of public interest.

Defendant argues the statements are not protected because Calvert is not a public figure. Calvert does not qualify as a person “in the public eye,” and his social media presence and involvement in a criminal case is insufficient to establish him as a public figure.

USC, however, is in the public eye. As West notes, USC has been involved in a series of public issues involving affiliated medical personnel which have drawn significant public comment and media coverage. In this context, accusations regarding a USC-affiliated doctor qualifies as a statement involving “a topic of widespread, public interest” within the meaning of the anti-SLAPP statute[1]. As plaintiff’s statement was on a topic of public interest, the first prong of an anti-SLAPP motion is fulfilled. The burden shifts to Calvert to show a likelihood of success based on admissible evidence.

Second Prong – Probability of success: Defamation/IIED.

The elements of a cause of action for defamation are 1. defendant made one or more statements to any person other than the plaintiffs, 2. The statement was reasonably understood to be about the plaintiff, 3. The statement was reasonably understood to mean that plaintiff had committed the alleged acts, 4. The statement was false, and 5. Defendant failed to use reasonable care to determine the truth or falsity of the statement. CACI 1702.

West indisputably made public statements about Calvert accusing him of fraud and other unlawful conduct. This fulfills the first three elements. Calvert presents documents showing West was aware Calvert intended to bill her health insurance for her procedures and gave permission to bill her insurer directly. See Calvert exhibits F, G. Calvert also presents documents West signed consenting to the surgical procedures. See Calvert exhibit H. Calvert argues this substantiates his claim that West’s media statements were false.

These documents are evidence that West consented to the procedures and knew defendants intended to bill her insurance company. Such findings would establish the fourth and fifth elements of a defamation claim. Plaintiff does not directly refute any of the presented evidence. Calvert has shown his defamation claim has the “requisite minimal merit,” fulfilling the second prong and defeating the anti-SLAPP motion.

This evidence also defeats the motion as to the IIED claim, as it indicates plaintiff intentionally and falsely accused defendant of various crimes, which a reasonable finder of fact could conclude constitutes “outrageous” conduct.

Breach of Contract

Plaintiff’s motion does not directly address the second cause of action for breach of contract. The motion therefore cannot be granted as to that claim. Plaintiff has shown her conduct arose out of protected activity, but defendant has presented admissible evidence establishing a prima facie case for all of his causes of action.

The motion is therefore DENIED.

[1] The court takes judicial notice of a May 15, 2019 Los Angeles Times article by Alejandra Reyes Velarde entitled “USC-sponsored plastic surgeon used patient’s insurer as ‘personal ATM,’ lawsuit says.” The court does not take notice of the truth of the contents, but as evidence that plaintiff’s allegations are a matter of public interest.


 

Natalie West v. Jay Calvert, M.D. et al. Case No. BC708415

Defendant Roxbury Clinic & Surgery Center’s Motion for Undertaking (CCP 1030)

Hearing Date: 1/16/2019

TENTATIVE RULING

Defendant Roxbury Clinic & Surgery Center moves for an undertaking under Cal. Code of Civ. Proc. §1030.

Under Cal. Code of Civ. Proc. §1030, “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees.” To prevail, moving party must show “plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding[.]” Cal. Code of Civ. Proc. §1030(b). To fulfill these requirements, a defendant does not need to show its success is certain or even likely, but is required to present evidence that success is reasonably possible. Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.

Defendant alleges plaintiff lives in Nevada. Plaintiff does not oppose this motion or contradict this allegation.

As to the second prong, defendant presents evidence showing plaintiff consented to the August 6 surgery, defendant informed plaintiff some of the cost would be billed to her insurance, and plaintiff was refunded the full cost of that surgery. Defendant’s exhibits A-D. Plaintiff’s lawsuit, however, is not based solely on this surgery. Plaintiff also alleges fraudulent billing in connection with multiple subsequent surgeries. Defendant presents no evidence refuting claims as to those surgeries. Defendant fails to make the showing as to prong two. DENIED. TENTATIVE RULING

Natalie West v. Jay W. Calvert, M.D. et al. Case No. BC708415

Hearing Date: January 16, 2020

Note: Multiple demurrers/motions to strike filed by various defendants are on calendar and will be addressed jointly in this tentative ruling. Plaintiff opposes some, but not all, motions.

Defendants Jay W. Calvert, M.D. and Jay Calvert, M.D., Professional Corporation’s

Demurrer & Motion to Strike as to Second Amended Complaint

Statute of Limitations

Defendants argue all causes of action are subject to MICRA’s statute of limitations. However, not all allegations are “based on” professional negligence. Plaintiff alleges the intentional tort of insurance billing fraud via unnecessary and unconsented-to surgeries performed to generate fraudulent billings. Larson v. UHS explicitly exempts such claims of intentional wrongdoing from MICRA’s statute of limitations, even if they occur in a medical context. OVERRULED.

Fraud

The Second Amended Complaint states “shortly before each of the 12 subsequent procedures,” Calvert’s staff members “Giovanni or Jenny Gittler” told West she would have to pay out-of-pocket for the operating room and anesthesia. 2AC at ¶31. Plaintiff alleges these employees acted at Calvert’s direction when they made such representations, and Calvert intended to bill plaintiff’s insurance despite his employees’ representations.

Plaintiff specifically alleged the “who, what, when, where and why” of the alleged fraud and alleged a basis for Calvert’s respondeat superior liability. Though plaintiff admits she received a refund after her initial surgery, the complaint does not allege she was refunded out-of-pocket costs for anesthesia and operating room costs for later surgeries. 2AC at ¶35. Plaintiff adequately alleges fraud against Calvert individually.

The allegations against the “Calvert entities” are overly broad. To proceed against Jay Calvert, M.D., APC plaintiff must allege who spoke on behalf of the entity, as well as the basis of their authority to speak for the corporation. OVERRULED as to Calvert, individually, but SUSTAINED with ten days leave to amend as to Jay Calvert, M.D., APC.

Breach of Contract

Defendants argue plaintiff has not sufficiently alleged contractual terms or damages. The reference to “numerous other documents” is vague and uncertain. Plaintiff describes the terms of a “Consent for Surgical Care” form signed on May 31, 2017. Under this document, plaintiff was to pay for the surgery and comply with Calvert’s pre-operative instructions, and Calvert agreed to perform the surgery personally. 2AC at ¶50, 72. Plaintiff alleges Calvert breached his obligation by having defendant Hammoudeh perform the surgery. 2AC at ¶74. This sets forth a claim for breach of contract. OVERRULED.

Forcible Sexual Penetration [Cal. Pen. Code 289(d)(1)]

Cal. Penal Code §289 is a criminal statute, which does not provide for a civil remedy. The 2AC does not allege the uterine surgery was done “for the purpose of sexual arousal, gratification, or abuse,” so fails to allege a violation of the statute. Cal. Penal Code §289(k)(1). SUSTAINED without leave to amend.

Motion to Strike Punitive Damages – STRICKEN 9/13/19

“In any action for damages arising out of the professional negligence of a health care provider, no 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 damages.” Cal. Code of Civ. Proc. §425.13. Plaintiff has not sought a court order per §425.13. As the alleged injuries arise out of defendant’s professional services, §425.13 applies. GRANTED.

Motion to Strike Injunctive Relief

Plaintiff seeks injunctive relief under Cal. Civ. Code §56.35 and §1798.84(e), as well as Cal. Bus. & Prof. Code §17203. §§56.35 and 1798.84 provide for injunctive relief when a health care provider or business improperly discloses personal information. No such disclosure is alleged. Bus. & Prof. Code §17203 provides for injunctive relief against defendants who have engaged in unfair competition. No cause of action for unfair competition is alleged; no facts are alleged that would support such cause of action. GRANTED.

Motion to Strike Attorney’s Fees – STRICKEN 9/13/19

Plaintiff seeks attorney’s fees under Cal. Civ. Code §56.35. This statute allows patients whose medical information has been wrongfully disclosed to recover attorney’s fees. As no such disclosure is alleged, attorney’s fees are not available. GRANTED.

Defendant Roxbury Clinic’s Demurrer & Motion to Strike (UNOPPOSED)

Fraud

The basis of Roxbury’s liability is unclear. Plaintiff alleges Roxbury is a “California Corporation controlled and owned in whole or in part by Calvert.” 2AC at ¶9. Plaintiff also alleges “Calvert, the Calvert Entities, and Sedates consistently and deliberately lied to Plaintiff about the possibility that her health insurance might pay for either the operating room and the anesthesia out of her own pocket, and repeatedly insisted that Plaintiff pay for both the operating room and the anesthesia out of her own pocket.” 2AC at ¶34. Plaintiff alleges “how, when, where and by what means” these representations were made by members of Calvert’s staff, but does not allege these staff members were Roxbury employees. 2AC at ¶31.

Plaintiff has not alleged how Roxbury is liable for these alleged misrepresentations. To the extent plaintiff’s fraud claim is based on Calvert’s nondisclosure, rather than affirmative misrepresentations, the complaint is vague. SUSTAINED with ten days leave to amend.

Medical Battery

Medical battery occurs where a doctor obtains consent to perform one type of treatment and performs a substantially different treatment for which consent was not obtained. Cobbs v. Grant (1972) 8 Cal.3d 229, 239. Additionally, medical battery can be established under a theory of “conditional consent.” If a patient shows his consent was conditional, the doctor intentionally violated the condition, and the patient suffered harm as a result of the doctor’s violation of the condition, the doctor is liable for medical battery. Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498.

Plaintiff claims she consented to a surgery by Calvert, but the surgery was performed by defendant Hammoudeh. 2AC at ¶¶50-55. Defendant argues plaintiff consented to the procedures that were performed. The facts alleged do not set forth a claim for medical battery based on a Cobbs theory of substantially different treatment. 

Plaintiff does allege “conditional consent” – that she agreed to Calvert performing surgery, not Hammoudeh or anyone else. 2AC at ¶50, 55. Plaintiff does not allege Hammoudeh knew she consented only to surgery performed by Calvert. Thus, plaintiff has not sufficiently alleged medical battery based on a conditional consent theory against Hammoudeh. Since plaintiff’s medical battery claim against Roxbury is derivative of Hammoudeh’s liability, Roxbury’s demurrer is SUSTAINED with ten days leave to amend.

Forcible Sexual Penetration

SEE ABOVE as to Calvert. The reasoning and ruling is the same as to Roxbury.

Motion to Strike

As the demurrer has been sustained as to all causes of action against Roxbury, the motion to strike is MOOT. However, the reasoning stated above is applicable to Roxbury.

Defendant University of Southern California’s Demurrer 

Fraud

Plaintiff has not alleged Calvert’s status as USC’s agent or that any alleged fraud was committed within the scope of his employment. The only specific misrepresentations alleged are statements allegedly made by Calvert’s staff, who are not alleged to be USC employees. 2AC at ¶31. Plaintiff has not established a basis by which USC is liable for these misrepresentations. Further, plaintiff does not allege facts indicating how Calvert’s alleged fraudulent billing scheme fell within the scope of his employment. SUSTAINED with ten days leave to amend.

Medical Battery

SEE ABOVE as to Roxbury/Hammoudeh. As the medical battery claim against USC is derivative of Hammoudeh’s individual liability, the claim against USC fails. SUSTAINED with ten days leave to amend.

Forcible Sexual Penetration

SEE ABOVE as to Calvert. The reasoning and ruling is the same as to USC.

Defendant Lisa Pulver, CRNA and Sedates, Inc.’s Demurrer/MTS (UNOPPOSED)

Fraud

Plaintiff alleges “each time that Plaintiff spoke with Pulver . . . Plaintiff also asked Pulver whether her health insurance would cover at least a portion of Sedates’ charges. Pulver invariably lied to Plaintiff, claiming she would not receive any insurance for her work as CRNA[.]” 2AC at ¶32. Plaintiff alleges that, despite these representations, “Sedates always fully intended to submit, and in fact did submit, to her health insurance,” the charges that plaintiff paid out of pocket. 2AC at ¶34.

It is unnecessary for plaintiff to allege Pulver (rather than Sedates) personally billed plaintiff’s insurance. Plaintiff alleges Pulver represented, in her capacity as Sedates’ owner, that the cost of anesthesia would not be covered by insurance, despite knowing that Sedates would bill West’s insurer. 2AC at ¶¶32, 33, 34, 62. Plaintiff alleges Pulver made false representations regarding Sedates’ intentions, and she knew those representations were false. These allegations set forth a cause of action against Pulver individually and against Sedates, as the SAC alleges Pulver made the representation in her capacity as Sedates’ owner. OVERRULED.

Forcible Sexual Penetration

SEE ABOVE as to Calvert. The reasoning and ruling is the same as to Pulver/Sedates.

Motion to Strike Punitive Damages, Injunctive Relief & Attorney’s Fees

SEE ABOVE as to Calvert. The reasoning and ruling is the same as to Pulver/Sedates.

Defendant Ziyad Hammoudeh, M.D.’s Motion to Strike (UNOPPOSED) 

Motion to Strike Punitive Damages, Injunctive Relief & Attorney’s Fees

SEE ABOVE as to Calvert. The reasoning and ruling is the same as to Hammoudeh.

Note: At the prior hearing on 9/13/19, plaintiff agreed, and the court ordered, that the punitive damages allegations and the request for attorney’s fees be striken as to Pulver, Sedates, Calvert and Jay Calvert, M.D., APC and USC. This order does not change the prior order of th