36
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 1 of 65
-,
2
3
4
5
6
7
8
9
10
11
12
13
( ) 14
15
16
17
18
19
20
21
22
23
24
25
26i i\ 27.._,'-
28
50lIDERlc WALLACE
TODD M, SCHNEIDER (State Bar #158253)JOSHUA KONECKY (State Bar #1 82897)W,R "HANK" WILLSON (State Bar #23332 i)SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000
Ban Francisco, California 94104Tel: (415) 421-7100Fax: (415) 421-7105TT: (415) 421-1665
LINDA ROSS (State Bar #85563)LAW OFFICE OF LINA ROSS2204 Union StreetSan Francisco, California 94123Tel: (415) 563-2400
SCOTT KAKI (State Bar #120791)ROBOOSTOFF & KALKl, PLC369 Pine Street, Suite 610Sán Francisco, Californa 94 i 04Tel: (415) 732-0282Fax: (415) 732-0287
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORN
COUNY OF ALAMEDA
MELINDA CAMBELL, on her own behalf, Case No. RG0522I764and on behalf of all others simlarly situated,
Plaitiffs,
vs.
SUTTER HEALTH, and DOES I though 25,inclusive,
Defendants.
PLAITIFF'S OPPOSITION TODEFENDAN'S REQUEST FORJUICIA NOTICE
Date: Februar 9, 2006Time: I :30 pmDeparent: 22
Judge: The Honorable Ronald M. Sabraw
PLAINTIFF'S QpposrrON TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE
Campbell v. Sutler Health. el al., Case No. RG0522 i 764
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 2 of 65
-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(
.',II
ì '--_/ 27
28
SCHEIDERlcWALLACE
Pursuant to California Evidence Code §455(a), because the items Defendant wishes-to be
noticed are improper for judicial notic;e, Plaintiff hereby opposes Defendant's Request for Judicial
Notice:
Plaintiff opposes Defendant's Request for Judicial Notice, and respectfully requests that this
Court not take judicial notice of the unpublished order, complaint and briefofwhich Defendant
seeks notice. Californa Rule of Court (CRC) 977 states: "an opinion.. .that is not certified for
publication or ordered published must not be cited or relied on by a cour or a par in any other
actÍon." (Emphasis added.) Because the order in Tweedy v. NeO Financial Systems, Inc. is
unpublished, it must not be cited or relied upon.
In addition, the ojlinIoI' in Tweedy was decided before the Californa Supreme Cour's
opinon in Parnell v. Adventist Healrh System/West (2005) 35 Cal.4th 595, whicb confed that
Defendant's balance biling practices are unlawfuL. Tweedy merely tracks the reaonig of the
cour in Swansan v. St. John's Regional Medical Center (2002) 97 Cal.App.4th 245, wbicb, as
shown in Plaitiffs Opposition to Defendant's Demurer, is inapplicable to tls cae. In addition,
the cour in Tweedy ignores the opinon of the Cour of Appea in Nishihama v. City and County of
San Francisco (2001) 93 Cal.App.4th 298, which stated that a hospital's "lien rights do not extend
beyond the amount it agree to receive from (the plaintiffs insuer) as payment in ful for servce
provided to piaitiff." (!d. at 307.)
Finally, pleadigs and briefs filed by an unelated par in an unelated case are not proper
for judicial notice here. The complait and brief of wmch I?efendant seeks notice have nothg to
do with the facts of ths case, and have no preceential or evidentiar value in ths case. Ths cae
should.be evaluated on its facts, and in light of Plaintiffs allegations.
Respectfully Submitted,
Date: Januar 27, 2006 SCHNEIDER & WALLACE
J-~~1NA --Han WilsonCounsel for Plaintiff
P~INTlff'S OPPOSITON TO DBFENDANT'S REQUES FOR JUDICIAL NOTICE
Campbell v. Sutter Health, et al., Case No. RG05221764i
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 3 of 65
37
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 4 of 65
Tc: Marcia Augsburger From: Schneider and Wallace . jl2712006 3:15:31 PM (Page 2 of 26)
,
lI
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
;CHBRk WALCE
TODD M. SCHNIDER (State Bar #158253)JOSHUA KONECKY (Sta Bar #182897)W.H. "HA" WILSON (State Bar #233321)SCHNIDER & WALLACE180 Montgomer Strt, Suite 2000San Fracisco, Californa 94104Tel: (415) 421-7100Fax: (415) 421-7105TTY: (415) 421-1665
LINA ROSS (Stae Bar #85563)LAW OFFICE OF LINA ROSS2204 Union Strt
San Fracisco, Calforna 94123Tel: (415) 563-2400
SCOTT KA (Stte Bar #120791)ROBOOSTOFF & KAKl, PLC369 Pine Strt, Suite 610
San Fracisco, Caforna 94104Tel: (415) 732-0282Fax: (415) 732-287
Attrneys for Plaitiff .
SUPERIOR COURT OF CALIFRN
COUN OF ALA
MEINA CAMBELL, on her own behaand on beha of al others s1rar1y situted
P1ai,
Cas No. RG05221764
PROOF OF SERVICE
vs.
SUTR HEALTH, and DOES 1 thougb25,inclusive,
Defendants.
PROOF OF SERVICE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 5 of 65
To: Marcia Augsburger. . From: Schneider and Wallace .1/27/20063:15:31 PM (Page 3 of 26:
l
SCHER&; WALCE
I
2
3
4
5
PROOF OF SERVICE
Sections 1013(8),2015.5 C.c.P.
Campbel et al. v. Sutter Health,Alameda Superior Court Case No.: RG05221764
I am a citizen of the Unite Staes and am employed in the County of San Fracisco. I am
6 ver the age of eighteen yea and not a par to the with entitled acton. My business address is
7 180 Montgomer Street, Suite 2000, San Fracisco, CA 94104.
8 . On Janua 27, 2006, I served the followi:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. Platis Opposition to Defendant's Request for Judicil Notice; and
2. Plaitis Opposition to Defendant's DemUIer to Plaintis Fit Amended
Complaint
n the pares by placing tre copies therof for faimle trmission to the number lite below
in a seed envelope, postge fuy praid, for deposit in the United Slate Mai at San
racisco, Califonua, addressed as follows:
Maia Augsburger
McDonough Hollan & Allen PC555 Capirol Mal, 9t Floor
Saciaento, CA 94814-4692
Facime: (916) 44-8334
I declae uner pety of peiur under th laws of th State of Caforn tht th foregoin
s ti and correc and tht ths Declation is executed on Janua 27, 2006, at San Fracisco,
alomia.
-2-PROOF OF SERVICE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 6 of 65
38
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 7 of 65
(
2
3
TODD M. SCHNEIDER (SBN 158253)JOSHUA KONECKY (SBN 182897)W.H. "HANK" WILLSON (SBN 233321)SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, California 94104Tel: (415) 421-7100Fax: (415) 421-7105TTY: (415) 421-1665
LINDA ROSS (SBN 85563)LAW OFFICE OF LINDA ROSS2204 Union StreetSan Francisco, California 94123Tel: (415) 563-2400
SCOTT KAKI (SBN 120791)ROBOOSTOFF & KALKIN, PLC369 Pine Street, Suite 610San Francisco, Californa 94104Tel: (415) 732-0282Fax: (415) 732-0287
RICHARD E. BRANDT (SBN 44893)MACIA L. AUGSBURGER (SBN 14686)JOHN C.J. BARNES (216694)McDONOUGH HOLLAND & ALLEN PC555 Capitol Mall, 9il FloorSacramento, CA 95814Tel: (916) 444-3900Fax: (916) 444-8989
Attorneys for Defendant Sutter Health
ReceiveDrEg O,~ 2UU61
M.H. & A.
SUPERIOR COURT OF CALIFORN
20
21
22
Plaintiffs,
vs.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
Attorneys for Plaintiff and the Proposed Class
COUNTY OF ALAMEDA
SUTTER HEALTH, and DOES 1 through 25,23 inclusive,
24 Defendants.
25
26
19 MELINDA CAMPBELL, on her own behalf, Case No. RG05221764and on behalf of all others similarly situated,
SrnNEIDER& WALLACE
27
28
JOINT STIPULATION AN REQUESTREGARING PLAINTIF'S FILING OFOPPOSITION TO DEFENDANT'SDEMUR
Date: February 9, 2006Time: 1:30pmDeparent: 22Judge: The Honorable Ronald M. Sabraw
JOINT STIPULATION AND REQUEST REGARDlNGP'S FILING OF OPPOSITION TO D's DEMURRERCampbell v. Sutter Health el a/., Case No. RG05221764
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 8 of 65
To' RelayFax via port COM401/27/06 17:42 FAX 916444 8989
From: 916 44 8989MI
112 0064:42:05 PM (Page 2 of 2)~002
1 STIULATION AN REQUEST2 The pares stipulate an request tht Plaintibe permtted to fie her Opposition to
3 Defendant's Demurr to Plaitiffs Firt Amended Complait (and acmpanyig Opposition to
4 Defendant's Request for .Judicial Notice), set for hearg on Febni 9, 2006, on Januar 30, .
5 2006. The pares do not reques tht the date for the fig ofDefendats reply brief, or the date
6 of the hearg, be changed.
7
8 Repectful1y Submittd,
9 Date: Januar 27, 2006
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
,27
28
SCHNER & WALLACELAW OFFICE OF LINA ROSSROBOOSTOFF & KAKl, PLC
1tt1J~~Counel for Plati
McDONOUGH HOLLAN & ALLEN PC
/L~John C. . BarsCounel for Defendat Sutter Heath
Jooo STIULTION AN REUET REARING P's FILGOP OPPONTO D'sDEMCampbell v. Suner Hetrh, et aL, Cae No. RGOS221764 .
1
SCHNIDER& WALCE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 9 of 65
"
1 PROOF OF SERVICE2 Sections 10I3(a), 2015.5 C.c.P.
3 Campbel et 01. v. Sutter Health,
4 Alameda Superior Court Case No.: RG04190588
5 I am a citizen of the United States and am employed in the County of San Francisco. I am
6 ver the age of eighteen years and not a par to the within entitled action. My business address is
7 i80 Montgomery Street, Suite 2000, San Francisco, CA 94104.
8 On Januar 30, 2006, I served the following:
9 1. Joint Stipulation and Request Regarding Plaintis Filng of Opposition to
10 Defendant's Demurrer
11 n the paries by placing tre copies in a sealed envelope, postage fully prepaid, for deposit in the
12 nited States Mail at San francisco, Californa, addressed as follows:
13
14
15
16
17
18
19
20
Richard BrandtMarcia Augsburger
John BaresMcDonough Holland & Allen PC
555 Capitol Mall, 9th FloorSacramento, CA 94814-4692
Scott KalRoboostoff & Kalki
369 Pine Street, Suite 610San Francisco, CA 94104
Linda RossLaw Offces of Linda Ross
2204 Union StreetSan Francisco, CA 94123
I declare under penalty of perjury under the laws of the State of Californa that the foregoing
21 's tre and correct and that ths Declaration is executed on Januar 30, 2006, at San Francisco,
22 alifomia.
23
24
25
26
27
28
SCHNIDER& WALLACE
-1-
PROOF OF SERVICE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 10 of 65
39
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 11 of 65
,'r .'r" ~ McDONOUGH HOLLAND & ALLEN PC
( 2Attorneys at Law 20'( F'RICHARD E. BRANDT (44893) .'" "t,:,MARCIA L. AUGSBURGER (145686) ". C r;~, 2- Iv
3 JOHN C.J. BARNES (216694) ¿: . '0
555 Capitol Mall, 9th Floor -4 Sacramento, CA 95814
Phone: 916.444.3900 '"
5 Fax: 916.444.8989 --'f
( J..--'
ii I¡ 27, ,'-,".
15
16
17
18
19
20
21
22
23
24
25
26
28
6 Attorneys for Defendant Sutter Health
7
8
9
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMDA
1 O' MELINA CAMPBELL, on her own behalf,and on' behalf of all others similarly situated,
11
12Plaintiffs,'
)))))))))))))))))
Case No. RG0522i 764
SUITER HEALTH'S REPLY BRIF INSUPPORT OF DEMUR TO THEFIRST AMNDED CLASS ACTIONCOMPLAIT
Daie: Februar 9, 2006Time: 1:30p.m.Place: Deparent 22Honorable Ronald M. SabrawTrial Date: NoneComplaint Filed: July 8, 2005
v.13
SUIR HEALTH and DOES i thugh 24,14 inclusive,
Defendants.
MH--i:-'" Sutter Health's Reply In Support of Demurrer 10 First AmendedComplaint 894350v7 09504(0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 12 of 65
l !
2
3
4
5
6
7
8
9
10
I1
12
13
( ) 14. _/
15
16
17
18
19
20
21
22
23
24
25
l)!26
27
28
MH-.-._..__...i-
i. SUMMARY OF CRITICAL ARGUMENTS ON REPLY TO DEMUREROPPOSiTION
Plaintiffs' opposition confirms that the Amended Complaint fails to allege any of the required
elements of a malicious prosecution claim. Plaintiffs cite nothing in the Amended Complaint to
support an allegation that Sutter Health fied any prior, independent actions, without probable cause,
and with malice, that terminated in Plaintiffs' favor. Plaintiffs acknowledge that they want this Court
to rule now that the liens were null and void and thus should have terminated in Plaintiffs' favor.
The opposition states the alleged wrong was the service or assertion of hospital lien notices.
Under the HLA. hospital lien notices merely preserve hospitals' potential lien rights. CaL. Civ. Code
§§ 3045.1, 3045.3, 3045.4. The notices do not creaie liens. See Parnell v. Adventist Health
Systemlesl, 35 Cal. 4th 595, 602 (2005). The HLA creates a "statutory nonpossessory lien" if an
underlying debt is owed. fa at 602"12. As the Parnell Cour explained: "(A) lien under the HLA is
simply a legal claim upon the propert of another in satisfaction of a debt owed by a patient for
medica servces provided by the lien claimant." ¡d. A claim is not an ~ction. At most, a lien
notice is a representation that the hospital has statutory lien rights, but it is not an action.
Actions that may arse from service of hospital lien notices include: (1) an action by the
hospital to. enforce the lien agaist the torteasor or other- par who made payment to the patient,
puruat to Civil Code section 3045.4; and (2) a deClaratory relief clai by'the patient, or torteaor
agaist the hospita before the lien is paid to detenne whether the hospita has sttutory lienngbts.
Plaitiffs do not allege that any prior actions terminated in their favor. They may not p~ue. a .
-declaratory judgment now, when. the liens have aleady been paid, because the relief they seek is
,retiospectiv~ and claims for declartory reJIefmust relate to an existing. or futue controversy.
Plaintiffs' tre complaint is that Sutter Health accepted. payment on lien claim where there
was no underlying debt. A malicious prosecution action canot be based on the defeIÌdart's mere
acceptace of payment. It requires that the defendant have filed some adversaral action t1having a
proeeurallife of its own." Zaros v. Stroud, 32Cal. 4th 958, 965 (2004). Accpting payment on
claims is not such an action, nor. is asserting an HLA. lien. An HLA lien has "the same
characteristics as a tyiealien." Parell, 35 Cal. 4th at 603. As a matter of law, a lien is a
ISutter Health's Replv In Support of Demurrer to First Amended Comelaint lla4J~v7 f19S1Oi
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 13 of 65
,-¡.
,
,i
2
3
4
5
6
7
8
9
10
11
12
13
J 14
15
16
17
18
19
20
21
22
23
24
25
I' 26.1
27
(
l,
Mf.
subsidiary procedural matter that wil not support a claim of malicious prosecution. Adams v.
Superior Court, 2 Cal. App. 4th 521, 528 (1992). Therefore, an HLA lien is a subsidiary'procedural
action that will not support a malicious prosecution claim.
For the same reason, Plaintiffs' abuse of process claim fails, and it is barred by the litigatiqn
privilege in any event. Abuse of process requires allegations showing use of the judicial process for
an unintended purpose. Hospital lien notices are-not asserted in ajudicîal process.
Accordingly, all of Plaintiffs' caust:s of açtion fail and the Amended Complaint must be
dismissed with prejudice.
A. The Amended Complaint Does Not Plead A Prior Action, As Required ToState A-Malicious Prosecution'Claim.
Plaintiffs base their complaint exclusively on the sÜbsídiar "assertionll of liens against their
tort recovery. not on any action to hold them liable.' Hospital. liens are not asserted against
patients nor fied in court. Cal. Civ. Code § 3045.3. Parnell, 35 Cat. 4th at 601-02. Liens do not
tae. the form of a complait. Id. A lien notice merely provides notice of the amount of charges the
hospital deems ~easonable .and necssa, i.e., notice of a claim. Parnell, 35 Cal. 4th at 606-07. No
sumons issues and no par files an anwer or demurrer to the lien. Idat § 3045~1 et seq. lnde'ed,
the assertion of a hospital lien has absolutely no procedur effect on the injured paries' cae.
Timely serviçe of the lien notice merely preseryes a lien nght that may not ever be satisfied. If the
patient recvers nothng frnm the torteaor, the hospita collects nothng. ld at §§ 3045.2, 3045.4.
If the patient is successful, the hospita may Oiuy recver up to 50% oftlie judgment, compromise or
settlement after prior liens are pald. Id. at § 3045.2. Thùs, hospita liens are completely dependent
on the outcome of the patient's complait agaist the torteaor. Id. at §§ 3045.1, 3045.2, 3045.4.
Because assertion of a hospital lien is a dependent subsidiar procedur act, it canot
support a malicious prosc;cution claim. See e.g., Chauncey v. Niems, 182 Cal. App.3d '967, 974
(1986) (proceedings that depend on other proceings do not support malicious prosecution claims);
Adams, 2 Cat. App. 4th at 528 ("(SJubsidiar proeeural actions withn a lawsuit such as an
application for a restraining order or for a lien will not support a -claim of malicious prosecution.fl).
.1 Opp. 3:10-18, 4:6.9, 8:23-25, 9:4-7.15-23 ("(There wil be'a favorable
judgment for Plaintit'and the. class ifandwhen this Court rules on Plaintifls reqllest for classwide declartory relief that the liens at issue are null and void.';).~~-~ 2Sutter Health's Replv In Support of Demurrer to FirSt Amended ComDlaint 89435ßv7 09504/0501
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 14 of 65
It is not a mfuII-blown' ."." independent, separate, adversarial action, involving the expense and
trauma of preparing a response, and having a procedural life of its own." Zamas, 32 CaI. 4th at 965.2
Civil Code section 3045.4 describes the hospital's right to fie an action based on non-payment of the
lien. Nishihama v. City and Caunty of San Francisco, 93 Cat. App. 4th 298, 309 (200 ¡). See a/so
Parnell, 35 Cat. 4th at 601-02. Plaintiffs do not allege that any such actions were fied or that
Plaintiffs or anyone who paid judgments or settlements were ever sued for nonpayment of the liens.
Nonetheles~, Plaintiffs urge this Court to consider the assertion of liens to be "ancilary
proceedings" suffcient to support a malicious prosecution "caim.3 Toward this end, Plaintiffs submit
that because the effect of a legally untenable wil contest "is... to infringe on the interest of the
will's proponent in freedom from unjustifiable and wieasonable litigatioß.1! the assertion of liens
should also be cOßsidered "3?cilar proceedings.!! Again, Plaintiffs allege the wrongdoing was
asserton of the liens, not litigation, let alone "unjustifiable and uneaonable litigation" against
them. In any event, will coi:testS are adversaral actions, unike hospita Iienš. WiI contests are
initiated by filing pleadings with the court in the form of a civl complaint. Crowley v. KatlemanJ
8 Cal. 4th 666, 691 (1993) (citig Cat. Prob. Code § 8250). The clerk issues a summons directing
the will's proponent to file a responsive pleading. Id The proponent, in tu, may answer or
demur to the complaint. Id The proponent 304 objector are then entitled to a jury trial on the
ments. Twxfordv. Twyord, 63 Cal. App. 3d 916,922 (1976). Once fied, the will contest "has the
effect of injectig new factual and legal issues into the probate process, and of placing on the will's
proponent the buren of mounting a defense to those issues." Id at 69i.4 Thus. a will contest is a
IICivil Action" under Code of Civil P~.oceur section 3~7 et seq. A lien is not.5
2 See also Adams, 2 Cal. App.,4th at 528; Sierra Club Foundation, 72 Cal. App. 4th 1135, 1152 (1959); Sheldon Appel
Co. v Albert & Dliker, 47 Cal. 3d 863, 812 (1989); Downey Venture v. LMI Ins. Co", 66 eal. App. 4th 478, 498-499\1998). .Plaintiffs Memorandum Of Points And Authorities In Oppasition To Defendant's Demurrer To Plaintiffs FirsAmended Complaint ("Opp.") 4:15-17.4 Indeed, the fiing of a wil contest changes the overall poste of the cae: "(The fiing of such a contest can
dratically trnsform the probate of a wil frm a roútine ex pare procedur often conducted by simple affdavit (Frob.
Code, § 8220. subds. (a) & (b)), into sharly adversaral and hotly contested litigation,. necesitating lengthy andexpensive discovery and trial." ¡d. .5 Plaintiffs also attempt to compai the asrtion ofhospítal liens to the filing of cross-cmplaints' and the institution of
speial insanity proings. Opp. 4:l5-17, citing Twrd. 63 Cal. App. 3d at 921-922 (filing of reuest for admissionsis depend"ent and not suffcient "action" to support malicious prosecution claim). However, unlike a lien, a cross-complaint creates an action ~istinct and separte fromthe original complaint. Bertero v. National General Corp., 13 Cal.
3Sutter Health's Reoly ln SUDoort of Demurr to First Amended ('.nmnIHint lõOA'lcn..'J tlOC/ni;n,
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 15 of 65
(--2
3
4
5
6
7
8
9
10
II
12
(13
),14
15
16
17
18
19
20
21
22
23
24
25
26
27
Mf~
(I:'-/
A MaliciousProsccution Claim Based on a Hospital Lien Requires aTermination of an Action Favorable to the Plaintiff Even If the Lien wasnot Valid.
Plaintiffs concede they did not challenge the validity of Sutter Health's liens to legal
ß.
termination in their favor. Opp.9:15-23. They argue invalidity of the liens is the same as favora.ble
termination, but acknowledge that the Amended Complaint 'requires this Court to rule "that the
liens were null and void, and thus termInated in favor o"fPlaintiff and the Class." Opp. 3:10-18,4:6-
9,8:23-25,69:4-7, 15-23.7 This unequivocally confirms that according to Plaintiffs' Amended
Complaint no court has determined in a prior action that the liens were null and void. Thus,
Plaintiffs have not stated a claim for malicious prosecution. Zamos, 32 CaL. 4th at 965.
Invalidity of the liens is no substitute for favorable termination. See, e.g., Crowley, 8 CaL.
4th at 686. As the Crowley.court explaied, whether a prior action was legally tenable goes to the
issue of whether the plaintiff in the prior action had probable cause, not to whether the action
terminated favorably to the defendant in the prior action. Id The favorable termination
requirement goes to whether the defendant in the prior action was finally determined to. be, ,innocent. Id These two. elements, the .malicious pràsecution defendant's lack of probable. cause
and favorable termination in favor of the plaitiff l1~erVe different puroses, and the legal tena1Jilty
of the underlying action is not the standard by which to judge whether the action was
terminated in Iplaintitsl favor.1I Id (Quotig Warren.v. Wasserman, Camden & Casselman, 20
Cal. App. 3d 1297, 1303 (1990) (emphasis added)). . In Warren, a law fino fied a cross-clalm that
3d 43, 52 (l9?4)..The.cross-defendant bemes, for proceurl pwposes, a defendat. Jd Dismissal of the origiialcomplaint does not affect the independent" exisence of the cross-complait. ld The sae is b1e for special insanity
proceedings. Twfnrdj 63 Cal. App. 3d at 922. Even when initiated with other litigation, insanity proceedings areÛldependent and do not depend upon other litigationJor their prosecution. ld., citing Cal. Weir. & Inst. Code § 5201 etseq.6 "(Tjhere .wil be a favorable judgment for Plaintiff and the class if and.
when this Court rules on Plaintiffs request forclasswide declartory relief that the liens at issue are null and void." .7 Plaintiffs also attempt to support their argument by mischaracterzing an arment Sutter Health made on page 15 of
itsinitial brief. Opp. 9:2-4. The portion of Sutter Health's brief Plaintiffs cite stted: "rl)t appear that Plaintifts seek adeclartion tht HLA liens .that were based on extinguished debts .are null ard void. This is an improper reques for anadvisory opinion, as Parnell has already anwered the question definitively. Parnell, 35 Cal. 4th at 609." This measthat if Plaintiff' Amended Complaint does not'request this Court to determine the validity of each lien, then aU thedeclartory relief action seeks is an opinion tht i.r an HLA lien Is based on an extiguished debt, then it is null and void.That question has ben answered by Parell, but not the question or whether the liens at Issue in tbis case were inCact based. on extinguished debts. That question has. néver .been determined, according to the. Amended .Complaint and Plaintiffs' Opposition. Threfore, no malicious prosecution action may be brought at this tie.
~i:-" 4Sutter Health's Reply In Support of Demurrer to First Amended ComDlaint 894350v7 09501002
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 16 of 65
.~(
!)15
16
17
18
19
20
21
22
23
24
25
i ì!26
\.'-._-27
MflÅ/-_._""_.~
2
was later dismissed because the statute of limitations had run. Warren, 20 CaI. App. 3d at 1299.
The cross-defendant then fied a complaint for malicious prosecution against the law firm, arguing it
had satisfied the favorable termination. element because an action that was barred by the statute of
limitations was not "legally tenable." Id at 1300, 1303. The court disagreed, explaining that the
malicious prosecution plaintiff had confused the elements of probable cause and favorable
tennination and holding that lack of legal tenability does not satisfy the favorable termination
3
4
5
6
7
8
9
10
requ~ement. Id at I302~04. Thus, even if the liens at issue here were "null and void" when they
were asserted, the Amended Complaint does not plead termination in Plaintiffs' favor. See ¡d.
Plaintiffs also ask the cour to do away with the favorable termination element, arguing that
forcing.them to obtain such terminations would be an lIutter waste." Opp.9:19-21. On the contra,
without the requirement, all defendants in all civil cases could sue plaintiffs for malicious
prosecution. Every civil complaint would invite a cross-complaint for malicious prosecution. Thus,
the requirement that Plaintiffs obtain a favorabÍe judgment in a prior action on the merits eiIures
that judicial resources are not wasted. The strct requirements of malicious prosecution ar
necesar to prevent. expanding the malicious prosecution tort. Cantu y. Resolution TrUst Corp., 4
11
12
13
14
Cal. App. 4th 857, 873 (1992). See also Sheldon Appel, 47 Cal. 3d at 872
Thestrct.pleading requirements do not flex depending on how diffcult it is to obtan a
favorale judgment on the merits. On the coIitr, as the Warren court acknowledged, par~s
wishing to assert a malicious prosecution claim may have to go to extrordinar_ lengt:
An allegation. defendants prosecuted a prior action knowig that the applicable statuteof limtations has ru on the clai does not reflect on the merits of the action. Whlefiling a lawsuit knowig the limitations period has ru is a pett act which waesjudicial resources, if a litigant wants to pursue a malic~ous prosecution actionunder those circumstances, he_ must eschew the procedural defense, forgo th'eeasy termination, and obtain a favorable judgment on the merits. Otherwse, thepolicy reaons behind requirig a favorable tennination would be thwared if alitigant could meet the favorable termination requirement simpIy by allegigdefendants knew the action wa bared by the statute of limitation.
Warren, 220 Cal. App. 3d at 1303.
Finally, Plaintiffs argue they are excused from pleading termination. becuse they pwprt to
represent a class. Opp. 9:I5~23. However, Plaintiffs. class statu does not excuse their failur to
5Sutter Health's Reply In Support of Demurrer to First Amended ComDlaint RQd1(1 MUAmCl1
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 17 of 65
,~..--
í,)
20
21
22
23
24
25
2ti
27
MHÀ'"
i ii"- .....
allege favorable termination.8 This would undermine the purpose of the substantive law of
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
malicious prosecution: 1lClass actions arc provided only as a means to enforce substantive law.
Altering the substantive law to accommodate procedure would be to confuse the means with the
ends- 10 sacrifice the goal for the going." Mirkin v. Wasserman, 5 Cal. 4th 1082, I 103 (1993)
(quoting City of San Jose v, Superior Court, 12 Cal. 3d 44,/, 462 (1974)).
Plaintiffs Fail To Explain Why, As A Matter Of Law, Sutler Health DidNot Have Probable Cause To As~ert Liens Under Swaiisoii.
For liens asserted prior to Parnell, Plaintiffs appear to argue that Sutter Health must show it
c.
actually relied on Swanson in order overcome the allegation it lacked probable cause. Opp. 6:9-15.
However, this is not the legal .standard for detemining ~hether there was probable cause. The
question is whether Swanson and other authorities made it at least arguable that Sutter Health could
assert liens against insured patients. Sheldon Appel, 47 Cal. 3d at 878, 885. Sutler Health has
aleady demonstrated that Swanson, Nishihama, tral cour rulings, and the words of the HLA itself
made it at least arguable that assertg liens against insured patients was pennssible.9 Plaintiffs'
-aguents that.some authorities supported contrry arguents does not change ths. Sheldon Appel,_
47 Cal. 3d at 878, 885.
For liens asserted afer Parnell, Plainti.ffs argue that lack of probable. cause is obvious
because their Amended Complaint relates only to liens asserted where no debt was owed. Ths_
arguent is a ruse. There- are no such liens yèt becuse no cour has rued on the validity of the
19 liens. In fact, Plaitiffs want ths Cour to rnakethe det~nnnation. Even afer Párnell there are so
many arguents that hospitas may make to support a lien ngbts tht it caot be credibly alleged
tht Sutter Heath asserted liens ~thout probable cause before a court' resolves :nultiple issues on
each lien and determnes the liens are invalid. See Parnell, 35 Cal. 4th at 609.611; Sheldon Appel,
47 Cal. 3d at 878, 885. Ths action is prematue.
8 If Plaintiffs believe that they are unable to challenge hospital liens on an individual basis, there ar proceures
available to them, such as cordination of cases under Code of Civil Procedur section 404, that would permit- tlem toadjudicae the validity ofliens en masse.
9 See Sutter Health's initial brief on this motion at H.C.I. Additionally, contr to Plaintiffs' assertion, Sutter Health was
a defendant in the Tweedy l'. NeO case, along with a Sutter Health hospital, Sutter Rosevile. See Sutter Health's ReplyTo Opposition To Reqest For Iudicial Notice, fied herewith.
---:-.. 6 _Sutter Health's Reply In Support of Demurer to First Amended ComDlaint f1a43~,,7 na~iosoi
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 18 of 65
(,)
17
18
19
20
21
22
23
24
25
26
27
M."l_ ii
D. Plaintiffs Misstate The Malice Requirement.
2Plaintiffs contend that malice exists when "proceedings are .instituted primarily for an
3
4
5
6
7
8
9
10
improper purpose." Opp. 8: i O~ i I. However, the malice element also requires Plaintiffs to
demonstrate that the underlying action was prosecuted out of actual hostility, il wil, or with a
subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the
expense of the wrongfully sued defendant. Downey Venture, 66 Cat. App. 4th at 498-499. Plaintiffs'
Amended Complaint alleges that Sutter Health "knew, or should have known, that the liens were
not based on a legally enforceable debt." Amend. Compo ~ 23 (emphasis added). This is not the
actual intent necessar to support a finding of malice.
E. Plaintiffs Have Failed To Support Their Abuse Of Process Claim And ToAvoid The Litigation Privilege.
11 The tort of abuse of process has two elements, neither of which Plaintifs have alleged:
12 "rT)here must be wrongful use of process, not merely a request for or initiation of process - and
13 second, the act complained of must involve_use of process. II Adams. 2 Cal. App. 4th at 528. As to
14 the "process" requirement, Adams cour explaied: "Process is action taken pursuant to judicial
15 authority. It is not action taen without reference to tht power of the cour. Thus, servng upon
16 . plaintiff a false notice that a bench warrant had been issued -is not process, becuse in makng
the false stteIIe~t, defendant took no action pursuat to -cour authority." Id at 530. Thus, even
acceptig Pl~tiffs' allegations as tre and assuming Sutter Heath served invalict hospita liens on. ,them, Plaintiffs have failed to state a tause of acti~n for abuse of process because they have not
pleaded a court action. Again, hospital liens .are not filed- with the cour and are not judicial
proceedings. Cal. Civ. Code § 3045.3. AS,to the element oflrabuse,11 ;theAdàms cour instrcted:
Merely obtaining or seeking process is not enough; there mus be subsequent abuse,by a misuse of the judicial process for a purose other than that which it was intendedto serve. ... The gist of the tort is the improper use of the proces afer it is issued.
Here an that is described is a motion to prevent reuction of felonies tomisdemeanors. That motion did not result in the issuance of aIy proces of the courwhich was then abused. It produced no act of judicial authority, no writ or orderwhich wa then misused. .Privileged or not, such activity falls short of the tort ofabuse of process, which most generally consists. of acts exterior to the lawsUit such asattempted extortion or pressure on a debtor by misuse of court orders. .... (Ajlthougbabuse of process may consist of a theat that proces will be invoked, and therefore
could also consist of an attempt to invoke such process, process mus in fact issue atthe defendant's behest.~~-~ 7
Sutter Health's Reply In Support ofDemulTer to First Amended Complaint 894350v7 0950/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 19 of 65
25
26
27~.c)
¡d. at 530-53 I. Thus, because Plaintiffs here do not allege process they cannot allege any. misuse of
a process.
In any event, as Adams also establishes, the litigation privilege bars Plaintiffs' abuse of
process claim. The Adams court went on to hold, unequivocally, that_abuse of process claims in that
case were barred by the broad litigation privilege, under Civil Code section 47 (b)(2). ¡d. at 530-32.
Plaintiffs argue that their complaint alleges a "course of conduc.t" which they say is not
protected communication. However, the only conduct alleged in Plaintiffs' complaint is Sutter
Health's assertion of hospital liens. See AI. Compo ~s 2, 3, 4, 5, 7, 12,21, 23, 24, 25, 28. This
Cour has aleady decided that the communcative act of asserting a hospital liens is protected by the
litigation privilege; Order on Dem. p. 1; See also Swanson, 97 CaI. App. 4th at 249; Olszewski v.
Scripps Health, 30 Cat. 4th 798, 832 (2003) (both holding assertion of liens privileged). This Court
stated: 'The Cour is, however, bound by the decisions of the Cour of Appeal regarding this issue.
(Swanson) states IlLien notices authorize by law are protected by the litigation-privilegel and holds
that the fiing of-lien notices und~r the HLA is protected litigation aotivity." This. issue is also
resolved by Olszewski: "(Wle reject plaintiffs contention that defendant's practice of using these
statutorily authorized liens lito seize fuds" in violation offederal law is noncommunicative conduct
falling outside the Jitigation privilege. The only tortous acts alleged by plaintiff were defendantts
asserton ofliens ...... Olszewski, 30 Cal. 4th at 831.
Plaitiffs also reargue that Limandri V. Jenkins, 52 Cal. App. 4th 326 (1997) saves their case.
TIs time, however, they argue that IiplaItiff has alleged an entire unawfl coure of conduct by
Defendant: Defendant asserts these Hens despite the fact that its (sic) knows or should know that it
is.owed no debt ... (and then) continues to asert, pursue and collect on its liens. despite ths
knowledge." Opp. i 1:2 I - I 2:2. This is' not noncommunicative conduct distinct from the assertion of
the lien. It is not even a tlcourse of conduct. ti It is simply another way of saying that Sutter Health
asserted liens until they were paid. In contrast, in Limandri, an attorney entered into a fee
agreement with his client that gave the attorney a percentage of the. client's recovery. in an
environmental contarnation cae and then the" abuse of proce defendant allegedly interfered with
this agreement by seeking and obtaining a securty interest in the Siie recovery. ¡d. at 345, The--L:_oc 8Sutter Health's Reply In Support of Demurrer to First Amended Complaint 8943S0 0950/052
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 20 of 65
~-- ,
( )
20
21
22
23
24
25
.26
27
MHÀ!
II
notice of lien came later, and was merely incidental- to the creation of the offending security interest
2
3
4
and other conduct and therefore not protected by the litigation privilege. ¡d. at pp. 342, 346. Here,
the assertion of hospital liens are not alleged to be incidental to Sutter Health's conduct, but to be .
precisely the conduct plaintiffs allege is wrongfuL.
Furthermore, the privilege applies even if the assertion is considered conduct because ¡twas
necessar to the communication of the lien. See, e.g. "Rubin v. Green, 4 Cal. 4th 1187, 1195-1196
(1993) (fact that defendant's communication unecessarîly involved relatèd actslldoes not destroy
privilege); O'Keefe v. Kampa, 84 Cal. App, 4th 130, 134 (2000) ("(TJhe scope of publication or
broadcast include.s noncommunicative conduct like the filing- of a motion for" writ of sale (citation),
the filng of assessment liens (citation), or the fiing ora mechanc's lien (citation) ,")
Plaintiffs also argue again that "liens not authorized by the HLA are no( protected by the
litigation privilege." Opp. 13:7-10 (emphasis in original.). Ths Cour has also rejected this
arguent. Order on' Dem. p. 1. The litigation privilege applies even when the conuunIcation
constitUtes an oútrghf violation of Jaw and regardless of equity, malice or intent to han. See, e.g.,
17
18
Silberg v. Anderson, 50 Cal. 3d 205, 218 (1990); Brown v. Kennard, 94.Cal. App, 4th 40, 46-51
(2001); O'Keefe v. Kampa; 84 Cal. App. 4th at 133-34; Meriel v. Rizzo, 64 Cal. App. 4th 53, 64-66
(1998).
As a last ditch i?ffort, Plaintiffs question the law of pnvil.ege, "arguing that the litigation
19 . privilege should not apply'to abuse of process claims. Plaintiffs want the Cour to believe tbat theSupreme Cour has recognze that the 'extension of the Htigation privilege to abuse of proces. .clais could-lIlarEely eliminate the"entire abuse of process tort.1I Opp:12:10~12, citing Oren Royal
Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Ca. 3d 1157, 1166-1167 (1987).
But the Supreme Court rejected this -argument. ld The Cour was recounting an arguent made
by the aDpellant. JO The Cöur expressly refused to decide the cae on this gromid, intead deciding
the cae "much more- narowly," an~ holding that the litigation privilege does not prevent the
admission in evidence ,of statèments made during a settement conferen~e as evidence that a paI
10 Plaintiff plucked the senteRce frgment from the. following sentence in the opinion: "Indeed, "(appellant) maintain
that if the absolute privilege of seion 47(2) were applied in the abuse of pros context in .the sae manner as itapplies to other tort, the privilege would larely eliminate the entire abuse .ofprocs tort." ¡d" ,~~_.. 9Sutter Health's Reply In Support of Demurrer to First Amended Complaint 89435Ov7095/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 21 of 65
¿:=-'-l .i
5
6
7
8
9
10
Il
12
i 13
L ) 14~
15
16
17
18
19
20
21
.22
23
24
25
26
27~.( ii'"'..
2
3
had the requisite intent to supp-urt an abuse of process claim. /d That issue is not before the Court
here. The applicabilty of the litigation privilege to HLA liens is at issue, arid the law is settled that
the litigation privilege applies to bar abuse of process claims. See Pacifc Gas & Electric Co. v.
4Bear Stearns & Co., 50 Cal. 3d 1 I 18, 1132 (1990).
F. Plaintiffs HayeNot Saved Their Remaining Causes Of Action ByPleading Malicio~s Prosecution And Abuse Of Process.
This Court already ruled that Plaintiffs' claims for conversion and fraud are barred by the
litigation privilege. Order on Dem. p. 2. Trying to overcome this, Plaintiffs assert the novel
proposition that they have resurrected their conversion and fraud claims by adding claims for
mal.Icious prosecution and abuse or-process. Opp. 14:19-21. This argument fails for at least ,two
reasons. First, Plaintiffs have not, in fact, suffciently pleaded malicious prosecution and abuse of
process, as set fort above. Second, the elements of conversion and fraud are different from those of
malicious proseci.tion and abuse of proces, and th~re is no authority for the proposition that
malicious prosecution or a~use ofprol?e:ss ca support conversion or fraud.
Similarly, Plaintiffs' Unfai Competition clai is bared by the litigation privilege unless
Plaintiffs state claims that IIborrow from or are tethered to the law of malicious prosécution. It Order
on Dem. 1. As set fort above, Plaintiffs fail to state a claim for malicious prosecution.
Accordingly; their UCL claim is bared by tbe litigation pnvilege.
II. CONCLUSION
For the reasons stated herein, Sutter Health respectflly requests the Cour susta its
demurrer without leave to amend.
DATED: Februar 2, 2006 McDONOUGH HOLLAND & ALLEN PCAttorneys at Law
BY:~(l~MACIA (I A GSBURGER
Attorneys for Defendant Sutter Healtb
~i:-" 10Suner Heallh's Reply In Support of Demurrer to Firs Amended Complaint 894350v7 09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 22 of 65
02/02/06 14:30 FAX 916 444 8989 MilA ~002
~-,'7.~--,
( )./
I !:'-, .
I
2
3
4
5
6
7
8
9
.10
II
12
13
14
15
16
17
18
'19
20.
.21
22
23
24
25
26
27
28
MHN--_.._..--"'L-.
CASE TITLE:
COURT/CASE NO:
Melinda Campbell, el al. v. Sutter Health, el al.
Alameda County Superior Court No. RG05221764
PROOF OF SERVICE
I am employed in the County of Sacramento; my business address is 555 Capitol Mall.. 9thFloor, Sacraento, Californa 95814. I am over the age of eighteen years and not a pary to theforegoing action.
I am readiÌy failar with the business pracce at my place of business for collection andprocessig of correspondence for maing with the United States Post Service. Correspondence so
collecte ánd proceed is deposited wi the United States Postal Servce that same day in theordiar coure ofbusIness. .On Februy 2, 2006, I served the withn:
D
D~D
(1) SUTR HEALTH'S REPLY BRIF IN SUPPORT OF DEMUR TOTH FIRT AMNDED CLASS ACTION COMPLAT;
(2) SUITHRHEALTllS REPLY TO PLAITIFFS' OPPOSITON TO REQUEST
FOR JuICIA NOTICE; AN,
(3) (pROPOSED) ORDER GRAG SUTR HEALTH'S DEMR TOPLAFS' FIRT AMED COMPLAIT FOR MAICIOUSPROSECUON, ABUSE OF PROCESS, UNAI BUSINS PRACTICES,AN DECLARTORY RELIEF.
by. mai ò" the followig par(ies) in said action, in acrdance with Code of CiviProceur § i 013a(3), by'placin a tre copy thereof encIosed in a seaed enVelope in a
designat. ar for outgoin mal, addresse as' set fort below. At McDonoug. Holland & Alen PC, mai placd in tht designated ar is given the correct amount ofposte and is depoi;ite th sae day, in.the ordi course of business. in a UnitedStates.mailbox in the City of Sacraento, Caorna
by personally deliverig a tre copy thereof, in acrdance with 'Coe of CiviPrceur § 1011, to the peon(s) and at the addrees) set fort below.
by overnight deliery on the followi pa(ies) in sald action,ln accrdance withCodò of Civi Prceur §1013(c), by placi a tre copy thereof enclosed in a seedenvelope, with deliver fee paid or provided for, and deliverg tht envelOpe to an
overght expre serce caer as defied in Code of Civil Procedur § i 013( c)..
by facsime trnsmision, in accordace with Code of Civil Procedure § I013(e),.tothe followi par(ies) at the facsimle numbers) indicated:
iProof of Servce 889827v2 0950/050
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 23 of 65
02/02/06 14: 31 FAX 916 444 8989
.¡
\I
2
3
4
5
6
7
8
9
10
11
12
13
14
15!/
MilA ~003
Todd M. SchneiderJoshua KoneckyW.H. "Han" Wilson
SCHNER & WALLACEi 80 Montgomery Street, Su\te 2000San Fracisco, CA 94104Telephone: (415) 421-7100Facsimie: (415) 421-7105
Counsel for Plaintiffs
Courtes Copv to: Co-counsel for Plaintiffs
Linda RossLAW OFFICE OF LINDA ROSS2204 Union Strt
San Fracisco, CA 94123Telephone: (415) 563-2400Facsime: (415) 931-9981
Scott Ka 'ROBOOSTOFF & KAKl, PLC369 Pine Strt, Suite 610,
San Fracisco, CA 94104Telephone:. (415) 732-0282Facsile: (415) 732-0287
16 I declare under Penaty ofpeijur under the laws of the State ofCalorua tht the foregoing istr and corrct aid th ths document wa executed on Februar 2,.2006. .
,4''~m'dEV17
18
( :~.'
19
20
21
22
23
24
25
26
27
28
. .M---_.._.~ 2Proof of Serce '889827..09504502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 24 of 65
40
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 25 of 65
. .
/ £(11)00 .1:1 A ::,. rIS:.-O
-~;."'r-: ./ ~..?-'" D -'-,2UU5¡:?'8 - i r-'011.,,Ci ., I ,~
"'t,.~ -2 I'/f '". 0..0.... 2:1'0
ill' . "~ ~C!~'" . "'~. "'!./o,:?,'-...~. (,Vf!"r'- '..~.
. I McDONOUGH HOLLAND & ALLEN PCAttorneys at Law
2 RICHA E. BRAT (44893)MACIA L. AUGSBURGER (145686)
3 JOHN C.J. BARES (216694)555 Capitol Mall, 9th Floor
4 Sacramento, CA 95814 .Phone: 916.444.3900
5 Fax: 916.444.8989
6 Attrneys for Defendat Sutter Heath
7
8 .
9
10.
II MELINA CAMBELL, on her own behalf,ard on behaf of all others simlarly situted,
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
Case No. Rc;5221764))) SUITER HEALTHS REPLY TO) . PLATIFFS' OPPOSITION TO) REQUET FOR JUICIAL NOTICE)))))))
12
l3Plaintiff, .
v.1.4 Dat: Febru 9, 2006
Time: .1:30 p.m.-'Plac: Deparent 22HonoI'bJe Ronad M. Sabraw
SUTR HEALTH and DOES I thougb 24,15' inclusive,
16
17
Defendants.
This Cour is permitted under Evidence Code section 4S2(e)(I) to tae judicial no:tce of$e
18rerds of any court of this state. Plaintiffs do not stat~ sucient grounds for this Cour t~ abstan .
.19frm tang judicial notice of the recrds of the Superior çour ofCaIifonia, County of Sacrento,
20
. 21CaSe No. 03AS03039, Arnold Tweedy, et 01.. v. NCO Financial Systems, Inc., et 01. ("Tweey").
First, Plaintiffs ar incorrt that Tweedy involved unelated pares. Sutter H~tI was' a22. .defendat. in the matter. See Suttr Health's Request for Judicial Notice in Support of Demurr
23("RFJN"), Exhbit A.
Second, llauitis are incorrct, that Tweedy involved umJated issues. The plaintiff in
Tweedy was a Health Net member who chalenged ahospita lien asered under Civil Code section
3045;1 et seq. See RFJN, Exhbit A. That is precisely the issue in ths mattr."
24
25
26,
27.
28
MlThird. Plaitifs misstate the effect of Californa Rules or Court 977. R,ule of Cour 977, .
prevents a par from c~ting an tipubJished opinion as support for a proposition of law. Sutter-=~_oc 1Sutter Healtb's Reply to Plaintiff' Opposition to Request for Judicial Notice
895623,,1 0950fæ¡02
,/2
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 26 of 65
/
22
23
24
25
26
27
28
MH
i. Heálth does not cite Tweedy for its precedential value, but rather as support for its position that the
2 asserton of liens prior to Parnell v. Adventist Health Systems, 35 Cal.4th 595 (2005) was. at the
3 time. arguably proper. If it was arguably prope~.' Sutter.Heath had probable cause t¿ assert the liens,
4 and Plaintiffs canot sustan an action for malicia,us prosecution. Zamos v. StrOu, 32 Cat. 4th 958,
5 965 (2004).
. 6 Finally, Plaitlffs' critique of.the superor cour's reaonig in Tweedy is irrelevant. The
..7 issue is not whether the cpur was correct. The issue is whether the cour's decision made it at least
8 ar~able that Sutter Health was permitted to assert liens agait insuÌed patients prior to Parnell.
9 For all of these reasons, Sutter He3th respectfully reuests the Cour grant its Request for
10 .Judicial Notice.
11
12
13
14
15
16
17
18
19
iO
21
DATED: February 2, 2006
McDONOUGH HOLLAND & ALLEN PC.Attorneys at Law
By: ~Jf¡fwÆ--GMA L. AUGSBURGER
Attorneys for Deftndant Sutter Heath
~.:-'" 2Sutter Health's Reply to Plaintiffs' Opposition to Request Jor Judicial Notice 895623,,1 09504/0502 .
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 27 of 65
12
13
14
15
16
i7
18
19
20
21
22
23
24
25
26
27
28
Mf-_...'"_.~
1
2
3
CASE TITLE:
COURT/CASE NO:
Melinda Campbell, et at. v. Sutter Health, et at.
Alameda County Superior Court No. RG0522 I 764
PROOF OF SERVICE.'
4
5
I am employed in the County of Sacramento; my business address is 555 Capitol Mall, 9thFloor. Sacramento, Californa 95814. I am over the age of eighteen years and not a pary tq theforegoing action.
I am readily famliar with the business practice at my place of business for collection and
processing of correspondence for mailing with the United States Postal Service. Correspondence socollected and processed is deposited with the United States Postal Service that same day in theordinar coure of business.
6
7
8
9
10
11
D
DLJ
D
On Febru 2, 2006, I served the within:
(I) SUTTER HEALTH'S REPLY BRIEF IN SUPPORT OF DEMURRR TOTHE FIRST AMNDED CLASS ACTION COMPLAINT;
SUTTER HEALTH'S REPLY TO PLAINTIFFS' OPPOSITON TO REQUESTFOR JUDICIAL NOTICE; AN,
(PROPOSED) ORDER GRATING SUTTER HEALTH'S DEMURRR TOPLAINTIFFS' FIRST AMNDED COMPLAIT FOR MAICIOUSPROSECUTION, ABUSE OF PROCESS, UNAIR BUSINESS PRACTICES,AND DECLARATORY RELIEF.
(2)
(3)
by mail on the following par(ies) in said action, in accordance with Code of Civil
Procedure § lO13a(3), by placing a tre copy thereof enclosed in a sealed envelope in adesignated area for outgoing mail, addressed as set fort below. At McDonoughHolland & Allen PC, mail placed in that designated area is given the correct amount ofpostage and is deposited that same day, in the ordinar course of business, in a UnitedStates mailbox in the City of Sacramento, Californa.
by personally delivering a trt: copy thereof, in accordace' with Code of Civil
Procedure § 101 I, to the person(s) and at the addressees) set fort below.
by overnight delivery on the following par(ies) in said action, in accordance withCode of Civil Procedure § 1013(c), by placing a true copy thereof enclosed in a sealedenvelope, with delivery fees- paid or provided for, and delivering that envelope to anovernght express service carier as defined in Code of Civil Procedure § l013(c)..
by facsimile transmission, in accordance with Code of Civil Procedure § l013(e), toth~ following part(ies) at the facsimile-number(s) indicated:
i
889827v209504/0502Proof of Service
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 28 of 65
'. '. ..
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ml-_...""_.~
1
2
3
4
Todd M. SchneiderJoshua KoneckyW.H. "Han" Wilson
SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, CA 94104Telephone: (415) 421-7100Facsimile: (415) 421-7105
Counsel for Plaintiffs
5
6
7
8
9
Courlesv COfJV 10: Co-counsel for Plaintiffs
Linda RossLAW OFFICE OF LINA ROSS2204 Union StreetSan Francisco, CA 94123Telephone: (415) 563-2400Facsimile: (415) 931-9981
Scott KalkinROBOOSTOFF & KALKIN, PLC369 Pine Street, Suite 610San Francisco, CA 94104Telephone: (4i5) 732-0282Facsimile: (415) 732-0287
I -declare under penalty of perjur under the laws of the State of California that the foregoing istrue and correct and that this document was executed on Februar 2, 2006.
, ?""'1lN~ifýr-
2
Proof of Service 889827v2 09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 29 of 65
41
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 30 of 65
McDONOUGH HOLLAND & ALLEN PCF:- Attorneys at Law\ 2 RICHARD E. BRANDT (44893)
MARCIA L. AUGSBURGER (145686)3 JOHN CJ. BARNES (2 I 6694)
555 Capitol Mall, 9th Floor4 Sacraento, CA 95814
Phone: 916.444.39005 Fax: 916.444.8989
t!t(f~eirr Sutter Health
FEB 2 200~
OA COUNTY SUPERiOR COURT
MELINA CAMBELL, on her own behalf,and on behalf of all othe,s similarly situated,
SUPERJOR COURT OF CALIFORNIA
COUN OF ALAMDA
Plaintiffs,
v.
SUIR HEALTH and DOES 1 though 24,incliiive,
Defendants.
) Case No. RG05221764)))))))))))))))
(PROPOSED) ORDER GRAINGSUTR HEALTH'S DEMUR TOPLAINTIFFS' FIT AMNDEDCOMPLAI FOR MALICIOUSPROSECUON, ABUSE OF PROCESS,UNAI BUSINSS PRACTCES, ANDECLARTORY RELIEF(Submitted pursuat to Alameda CountySupenor Cour Local Rule 5.1)
Date: Februar 9, 2006Time: I :30 p.m.'Place: Deparent 22Judge: Honorable Ronald M. Sabraw
TO ALL PARTIES AN THEIR ATTORNYS OF RECORDc
Defendant Sutter Health's Demurer to Plaintiffs' Firt Amended Class Action Complaint for
Malicious Prosecution, Abuse of Process, Unfair Business Practices, and Declaratory Relief
("Amended Complait") came on for heang in ths Deparent on Febru 9, 2006, at I :30 p.m.
The matter waS argued and submitted, and good- cause appeang therefor,
IT iS HEREBY ORDERED that:
Sutter Health's Demurer is sustained without leave to amend, on the following grounds:
Demurrer to Entie Complaint
The Amended Complaint, as each cause of action, fails to stt~ facts suff~ient to constitute a
cause of action.
t
(Proposed) Order Granting Sutter Health's Demu.rrer to Plaintiffs. Amended Complaint 889341vl095010502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 31 of 65
r,
7
8
9
10
11
12
13
f )14
15
16
17
18
Demurrer to First Cause of Action
2 The First Cause of Action, for malicious prosecution, fails to state facts suffcient toi.
3 constitute, a cause of action because the assertíon of a lien under the Hospital Lien Act, CivíI Code
4 section 3045.1 .et seq. C1HLA"), is not a prior action suffcient to support a malicious .prosecution
5 claim.
6 The First Cause of Action fails to state facts suffcient to constitute a cause of action2.
because the Amended Complaint fails to allege any action that legally tennInated in Plaintiffs' faýor.
3. The First Cause of Action fails to state facts sufcient to constitute a cause of action
because Sutter Health had prob~bie cause to assert HLA liens.
4. The First Cause of Action fails to state facts suffcient to constitute a cause of action
because the Amended Complaint fails to suffciently allege Sutter Health asserted HLA liens with
malice.
Demurrer to Second Caus"e of Action
5. The Second Cause of Action, for ¡'abuse of process." i~ improper and "must be strcken
"bec"ause tls Cour did "not -grt Plaintiffs leave to amend to state a cause öf action for abuse of
process.
6. The Secnd Cause of Action is bar by the litigation privilege set fort in Civil
Code § 47(b) and therefore fails to-state facts suffcient to constitute a cause ofacton.
19 Demurrer to Third Cause of Action
20 The TId Cause of Action, for "conversion and trespass to chattels, n is" bar by the7.
21 litigation privilege set fort in Civil Code § 47(b) and therefore fails to stte facts sufcient to
22 constitute a cause of action.
23 Demurrer to Fourth Cause 'of Action
24 8. The Four Cause of Action, for -frud and negligent misrepresentation, is bared by
25 the litigation privilege set fort in Civil Code § 47(b) and therefore fails to state facts. suffcient to
26 constitute a cause of action.
( .ìi 27 /ii"-.-..28 iii
.MH .____PC_01- 2(Proposedl Order Granting Sutler Health's Demurrer to Plaintiffs' Amended Complaint 889341v1091050
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 32 of 65
1,,,--
¡
5
6
7
8
9
10
11
12
13
(. 14.
)."--- I5
16
17
18
19
20
21
22
23
24
25
26
C I; 27._--,
28
MH-._.._..-"Mi- -
2
Demurrer to Fifth Cause of Action
9. The Fift Cause of Actibn, based on Business & Professions Code sections 17200 et
3 seg., is barred by the litigation privilege set forth in Civil Code.§ 47(b) and therefore fails to slate
4 facts sufficient to constitute a cause of action.
10. The'Fifth Cause of Action fails to state facts suffcient to constitute a cause of action
because it does not allege that Sutter Health violated a discrete federal or state law.
Demurrer to Sixth Cause of Action
11. The Sixth Cause of Action, for declaratory relief, fails to. state facts suffcient to
constitute a cause of action because it seeks a declartion concerning communications 'that occurred
in the past.
12. The Sixth Cause of Action fails to state facts suffcient to constitute a cause of action
because it seeks an advisory opinion on a question-aleady answered by Parnell v. Adventist Health
Systems/West, 35 CalAth 595 (2005).
13. The Sixth Cause of Action fails to state facts suffcie.nt to constitute a cause ofactioD
beause it does not seek resolution of an actual controversy betveen the pares.
14. The Sixth. Cause of Action faiJs to state facts sufcient to constitute a cause of action
becauSe it is based on communcations that are protected by the litigation pnvilege.
IT is FUTHR ORDERED that Sutter Health be dismissed from ths action, and that Sutter Heath
is awadèd its costs of suit and attorneys fees pursuant to CiVil Code § i 780( d).
DATED:Honorable Ronad M. SabrawJudge of the Superior Cour
3
(Propòsedl Order Granting Sutter Health's Demurrer to Plaintiffs' Amended Complaint 88934lvl 095010%
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 33 of 65
42
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 34 of 65
I i-lJ-UJ-i:uuo~rlu, 10; 1 U UNC LCUNL UN~LNNU tiL1NU
_~~!O;:OB J.5;14 FAX iiiii 11114 Sf- Mlfi:
t. McDONOUGH flOLLAND & ALLEN PCAttomi:ys at Lnw
2 RICHARD E. BRANDT ('14893)MACIA L. AUGSBURGER (145686)
3 J011N CJ. BARS (216694)555 Capitol Mall, 9di I'loor
4 Sacraento, CA 95814Phone: 916.444.3900
5 F..x: 916.44.8989
6 AtlOrneys for Defendant Sutler Heath
7
\ tHA)J I U öjJ ~unn I- UUi:UU¿1901i;i
E!'D(Jl~SEDFILED
AL;",T\.iED,J. COUNTY
FEB - 3 1006
CLERK 1)!'TliE sl.i¡'Ei~I:Jj~ COURT
By CY..!T: 11 \ S g(jla Frkl'lIli.
8
.9
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALDA
10 MELINDA CAMBELL, 00 her own behal,and on behriofnl Otßèrs silarly situated._
11
.12PllUtiI"
v.13
SIlRHEALTHundDOES 1 thougl24,14 inclusve, I
!
IS DefL-ndants.
16
))))))))))))
Cao No. RG05221764
SUITER HEALTH'S CASEMAAGEM!NT STATEM!NT
Date: Februar 9,2006TIme: I :30 p.m.Place: Deparenl22Judge: Honorale Rooald M. SabrawTril Date: None:
BY FAX17 In anticipation of the: Case: Management Confc~cncc to be: held in th Deparent on
18 Februar 9, 2006, Defendi Sutter Heath respectly submlts tlio followig Case Munugomcnt
19 StatemeaL
I. STATEM!NT OF ISSUES PRESENTED20
21 A. Plaintiffs' Claims:
22 P1lUti Melinda CumpbeU, on behalf of herelf iid ii aleged clas or aggreved person'
23 (hereaer colleetively "PIlUtls"), hii sued Sutter HeaU~ Plainiif allege tht Sutter Heath
24 improperly asertcö hospita lien notices agains thei tort n:çoverics .fom thd-pnr torteaors.
2S See First Amended Clas Action Complaint for MoJicious Prosection, et seq. (hereafer "Amended
26 Complaii"). ~ 2, PI"iniis allege thai by assertg liens Sutter Head, has comittcc malicious
27 prosecution and abused legal proces¡ co.itti: conversion and tresilS to chatels; commtted
28 fraud and negligent roisepesi:ntation; and v1ol~.ted Busines and Profesions Cede s(!ction 17200 er
MH-_........_.~loi~5170.IiI-mr.~lWoMSutter Heilth':e Ciiiie Mllßugcnicni::"ttcmi:iil H!lS?49vJ 0%04/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 35 of 65
28
'Mf-_.....-...i-
1 seq. Amended Complaint, ils 32-76. Plaintiffs seek declaratory, injunctive, equitable, restitutionar,
2 and compensatory relief, civil penalties, and attorneys fees and costs. Amended Complaint, Prayer
3 for Relief, ~s 1-11.
4 B. Sutter Health's Position:
5 Sutter Health has filed a Demurer to Plaintiffs' Amended Complaint. The demurrer is set to
6 be heard in this Deparent on February 9, 2006, at 1:30 p.m. The outcome of the demurer may
7 limit or eliminate Plaintiffs' case.
8 C. Facts Supporting Each Position:
9 Sutter Health maintains that no facts can support a cause of action against it relating to the
i 0 assertion of hospital lien notices under the Hospital Lien Act, Civil Code section 3045.1, et seq.
11 D. Status of Relevant Discovery:
i 2 Discovery has not yet begun.
13 II. THE PARTIES AND REPRESENTATION
14 Plaintiff Melinda CaIphell is allegedly a resident of San Jose. Californa, who received
15 healthcare services from a Sutter Health-affiiated hospitaL. Amended Complaint, ~s 8, 10. Ms.
16 Campbell purPorts to represent a class of simlarly aggrieved persons. Amended Complaint, ir 30.
17 Schneider & Wallace is lead counsel for Plaitiffs.
18 Sutter Health is a community-based, not-for-profit. healthcare delivery system. Sutter Health
19 serves more than 100 communties in Nortern Californa though a system of28 locally governed,
20 not-for-profit hospitas. McDonough Holland & AlIen PC represents Sutter Health in ths litigation.
21 II. PROPOSED DEADLINS AND LIMITS ON JOINER
22 None at ths time.
23iV.' CLASS DISCOVERY AND CLASS CERTIFICATION
24 Sutter Health disputes that the putative class is suitable for class treatment. Sutter Health will
25 oppose certification oftle class described in the Amended Complait at ii 30.
26 V. PROPOSED LITIGATION SCHEDULE
27 Ifthis case goes forward, Sutter Health proposes the following schedule:
. Class discovery: Winter - Spring 2006
2Sutter Health's Case Management Statement 895749vl 0950410502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 36 of 65
1
2
3
4
5
. Class certification motion: June 2006
. Discovery regarding liability and damages: Sumer 2006
. Dispositive motion(s): Fall R Winter 2006
. Trial: Winter 2006 - Spring 2007
VI. POTENTIAL EVIENTIARY/CONFIDENTIAITY ISSUES
6 Sutter Health anticipates Plaintiffs wil seek patient medical records and other private
7 inormation during discovery. These records may be subject to state and federal privacy protections.
8 VII. DESCRIPTION OF.PROCEDURA POSTURE OF THE CASE
9 1. Unserved Partes:
10 Sutter Health has been properly served.
11 2. UnservedlUnfiled Cross-Complaints:
12 None at this time.
13 3. Related Actions/Potential for Coordination or Consolidation:
14 None known.
15 4. Possible Jurisdictional or Venue Issues:
16 None at this time.
17 5. Status of Discovery:
18 Discovery has not yet begun.
19 6. Unresolved Law and Motion:
20 Sutter Health's demurer to the Amended Complait is set to be heard in this Deparent on
21 February 9, 2006. If the case goes forward, Sutter Health will oppose class certification and wil fie
22 a dispositive motion.
23 7. Requests for, or Opposition to, any ADR Proceedings:
24 None at this time.
25 8. Severance of Issues for Trial:
27
26 Unkown at ths time.
9. Caleudar Conflcts:
Ml28 None at this time.
_"'_"_.oc_.~ 3Sutter Health's Case Management Statement 895749v109504/050i
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 37 of 65
,
VII. STREAMLINING THE LITIGA nON
2 1. Master fie:
3 Sutter Health believes the parties would benefit from an electronic document repository.
4 2. Lead counsel:
5 Schneider & Wallace is lead counsel for Plaintiffs. McDonough Holland & Allen PC is
6 counsel for Sutter Health.
7 3. e-filing:
8 Sutter Health believes that all filings with the Court should be e-fied, and that service
9 between the paries may be accomplished by e-mail ofPDF documents.
10 4. Web page:
1 i Sutter Health is open to the concept of a web page.
i 2 DATED: February 3, 2006
13 McDONOUGH HOLLAND & ALLEN PCAttorneys at Law
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MH
By:
Attorueys jj Defendant Sutter Health
-_............i- 4Sutter Health's Case Management State~ent 895749vl 09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 38 of 65
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
Ml_i-&A1I""""_.~
1
2
CASE TITLE:
COURT/CASE NO:
Melinda Campbell, el al. v. Sutter Health, el a/.
Alameda County Superior Court No. RG05221764
PROOF OF SERVICE
I am employed in the County of Sacramento; my business address is 555 Capitol Mall, 9thFloor, Sacramento, California 95814. I am over the age of eighteen years and not a party to theforegoing action.
I am readily famliar with the business practice at my place of business for collection and
processing of correspondence for mailng with the United States Postal Service. Correspondence socollected and processed is deposited with the United States Postal Service that same day in theordinary course of business.
~
DD
D
On February 3, 2006, I served the within:
(1) SUTTER HEALTH'S CASE MANAGEMENT STATEMENT
by mail on the following par(ies) in said action, in accordance with Code of Civil
Procedure § 10 13a(3), by placing a tre copy thereof enclosed in a sealed envelope in a
designated area for outgoing mail, addressed as set fort below. At McDonoughHolland & Allen PC, mail placed in that designated area is given the correct amount ofpostage and is deposited that same day, in the ordinar course of business, in a UnitedStates mailbox in the City of Sacramento, California.
by personally delivering a tre copy thereof, in accordance with Code of CivilProcedure § 1011, to tbe person(s) and at the addressees) set fort below.
by overnight delivery on the following par(ies) in said action, in accordance with
Code of Civil Procedure § I013(c), by placing a tre copy thereof enclosed in a sealedenvelope, with delivery fees paid or provided for, and deliverig that envelope to anovernight express service carer as defined in Code of Civil Procedure § l013(c)..
by facsimile transmission, in accordance with Code of Civil Procedure § ioI3(e), tothe followig par(ies) at the facsimile number(s) indicated:
1
889827v309504/0502Proof óf Service
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 39 of 65
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ml_~_&A1I..",_.~
I
2
3
Todd M. SchneiderJoshua KoneckyW.H. "Han" Wilson
SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, CA 94104Telephone: (415) 421-7100Facsimile: (415) 421-7105
Counsel for Plaintiffs
4
Coiirtesv CODV to: Co-counsel for Plaintiffs
Linda RossLAW OFFICE OF LINDA ROSS2204 Union StreetSan Francisco, CA 94123Telephone: (415) 563-2400Facsimile: (415) 931-9981
Scott KalkinROBOOSTOFF & KALKIN, PLC369 Pine Street, Suite 610San Francisco, CA 94104Telephone: (415) 732-0282Facsimle: (415) 732-0287
I declare under penalty of perjury under the laws of the State of Calforna that the foregoing istrue and correct and that this document was executed on February 3, 2006.
-'irÊkæi/A-
2
Proof of Service 889827v309504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 40 of 65
43
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 41 of 65
I TODD M. SCHNEIDER (State Bar #158253)JOSHUA KONECKY (State Bar #182897)W.H. "HANK" WILLSON (State Bar #233321)SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, California 94104Tel: (415) 421-7100Fax: (415) 421-7105TTY: (415) 421-1665
SUPERIOR COURT OF CALIFORNIA
20
21
22
Plaintiffs,
vs.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
LINDA ROSS (State Bar #85563)LAW OFFICE OF LINDA ROSS2204 Union StreetSan Francisco, Californa 94123Tel: (415) 563-2400
SCOTT KALKIN (State Bar # 120791)ROBOOSTOFF & KALKl, PLC369 Pine Street, Suite 610San Francisco, California 94104Tel: (415) 732-0282Fax: (415) 732-0287
Attorneys for Phiintiffs
COUNTY OF ALAMEDA
SUTER HEALTH, and DOES I thougb 25,23 inclusive,
24 Defendants.
25
26
27
19 MELINDA CAMBELL, on her own behalf, Case No. RG05221764and on behalf of all others similarly situated,
SOlEIDER& WALLACE
28
PLAINTIFF'S COMPLEX CASEMANAGEMENT CONFERENCESTATEMENT
Date: February 9, 2006Time: 1 :30 pmDeparent: 22
Judge: The Hon. Ronald M. Sabraw
PLAINTIFF'S COMPLEX CASE MANAGEMENT CONFERENCE STATEMENTCampbell v. Sutter Health, et aT., Case No. RG05221764
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 42 of 65
1 1. INTRODUCTION
2 This action challenges Sutter Health's policy and practice of asserting liens against persons
3 who do not owe Sutter Health any debt, and asserting the liens even though Sutter Health is well
4 aware that it is not owed anyting. Sutter Health's conduct is unlawful and against public policy,
5 and Plaintiffs complaint seeks appropriate redress.
6 As alleged in Plaintiffs First Amended Complaint, Sutter Health unlawfully engages in a
7 policy and practice called "balance biling." Under this policy and practice, Sutter Health collects
8 payments for medical services provided to people who are injured by a tortious act (the amount
9 owed to Sutter Health is often agreed upon by contract between Sutter Health and the injured
10 persons' insurance carer), but then asserts liens against the subsequent tort recoveries of the
11 injured persons when those recoveres-which include items such as emotional distress and lost
12 earngs-exceed the amount owed to Sutter Health. The injured person's debt to Sutter Health
13 could be extinguished by contract, banptcy, or some other mean, but Sutter Health assert
14 these liens even though it is aware that no debt exists. The amount of the lien is generally the
15 difference between the debt actually owed and already paid to Sutter Health, and an inapplicable
16 "customary rate" which Sutter Health exploits in order to exact fuer payment.
17 II. STATEMENT OF THE CASE
18 In Parnell v, Adventist Health System/Wesr (2005) 35 Ca1.4'" 595, the Californa Supreme
19 Cour held that any attempt by health care providers, such as Sutter Health, to recoup their so-
20 called "customary" charges, absent an underlying debt, is unlawfL.
21 Defendant's Demurer attempts to undermine the class action process and render Plaintiff
22 and the class incapable of responding to Defendant's unlawful business practices in any
23 meaningful way. If Defendant's Demurrer is to be believed, Plaintiff and the class have no redress
24 against Defendant's unlawful liens, except to brig thousands of :fl-fledged judicial actions to
25 expunge each and every single lien that Defendant assers. Such piecemeal enforcement is not a
26 realistic option. Without the ability to challenge Defendant's conduct on a classwide basis,
27 Defendant can continue to harass its customers and use judicial tools to compel them to pay offtle
28
PLAINTIFF'S COMPLEX CASE MANAGEMENT CONFERECE STATEENTCampbell v. Sutter Health. et al., Case No. RG05221764
1
SCHIDER&WALLACE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 43 of 65
1 liens, despite the fact that Defendant is fully aware that it is not owed any money, and despite the
2 fact that the California Supreme Court has found this practice to be unlawfuL. Sutter Health's
3 arguents would render Parnell a nullty, by allowing Sutter Health to continue to prosecute its
4 unlawful liens in the very same way that was outlawed by Parnell; Sutter Health is attempting to
5 use the litigation privilege as a shield from redress for its unlawful practices. However, the
6 litigation privilege applies only to communications, not a course of conduct or the practice of
7 misusing legal procedures, such as subpoenas, default judgments, and debt collection practices.
8 Sutter Health's continuing asserton of liens against persons who owe Sutter Health no debt
9 constitutes malicious prosecution. Malicious prosecution requires an action taken without
i 0 probable cause, with malice, which is terminated in the favor ofthe plaintiff. Plaintiffs allegations
11 that Sutter Health asserts and continues to press the liens though the improper use of the judicial
12 process, even though it knows that no debts are owed, satisfy the malice and lack of probable cause
13 elements. In tur, the allegation that the liens were rendered null and void by the extinguishment
14 of the underlying debt shown that they have been terminated in favor of Plaintiff and the class.
15 Sutter Health's assertion of liens despite the lack of any underlying debts also constitutes
16 abuse of process. Abuse of process requires the wilful use of the judicial process for ar improper
17 purose. By asserting and using varous methods to attempt to enforce its impermissible liens
18 against Plaintiff and the Class to collect monies it is not entitled to under California law, Sutter
19" Health has made wilful use of the judicial process and all of its tools for an improper purose.
20 As a result of Sutter Health's malicious prosecution and abuse of process, Sutter Health is
21 liable for conversion and/or trespass to the chattel of Plaitiff and the class, and Sutter Health has
22 engaged in fraud and/or negligent misrepresentation regarding whether Plaintiff and the members
23 of the class owed Sutter Health any money. In addition, Sutter Health's malicious prosecution and
24 abuse of process are unfair, unlawfl, and fraudulent business acts and practices, in violation of the
25 California Business and Professions Code §§ 17200, et seg. ("UCL").
26
27
28
PLAINTIFF'S COMPLEX CASE MANAGEMENT CONFERENCE STATEMENT
Campbell v. Sutter Health, et al., Case No. RG052217642
SæNlDER& WALLACE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 44 of 65
I II. REPRESENTATION
2 Plaintiff is represented by Todd Schneider, Joshua Konecky, and W.H. '"Hank" Wilson of
3 Schneider & Wallace, Linda Ross of the Law Office orLinda Ross, and Scott Kalkin of
4 Roboostoff & Kalkin, PLC. Schneider & Wallace wil be lead counsel for Plaintiff.
5 iv. DISCOVERY
6 Neither side has issued formal discover. PlaIntiffwil issue her first round of discovery
7 within the next few weeks. This wil include requests for production and other written discovery,
8 as well as a notice of a deposition for the person most knowledgeable regarding the policies and
9 practices at issue. In addition to exploring the policies and practices at issue, the written discovery
10 wil seek a class list though an opt-out procedure similar to those previously approved by this
11 Court. Because there is substantial overlap for discovery purposes between the facts going to the
12 merits of class liability and the facts going to class certification, Plaintiff does not believe that
13 bifurcation of discovery along these lines would be waranted.
14 V. CLASS CERTIFCATION
15 Plaintiff anticipates filing a Motion for Class Certification in approximately September
16 2006. Plaitiff may also file a môtion to bifurcate class liabilty and injunctive relief from the
17 calculation of class member damages and wages due.
18 vi. OTHER MOTION PRACTICE
19 Defendant has filed a Demurrer to Plaintiffs First Amended Complaint, which is scheduled
20 for hearg on Februar 9, 2006, at 1:30 pm-the same time as this Case Management Conference.
21 In addition to a Motion for Class Certification, Plaitiff anticipates filing a Motion for Sumar
22 Judgment.
23 VII. PROPOSED TRIAL AN PRETRI SCHEDULE
24 Plaintiff anticipates that the tral of ths action would take approximately two to three weeks,
25 and proposes that a trial occur in late Sumer 2007. Working backwards from that trial date,
26 Plaintiff proposes the following dates:
27 Last day for hearing on law and motion: June 15,2007;
28
PLAINTIFF'S COMPLEX CASE MANAGEMENT CONFERENCE STATEMENT
Campbell v. Sutter Heal/h, el al., Case No. RG052217643
SCHEIDER&WALLACE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 45 of 65
24
25
26
27
28
SCHIDER&WAllACE
1 Last day to conduct expert discovery: May 15, 2007;
2 Last day for rebuttal expert disclosure: March 15, 2007;
3 Last day to complete non-exper discovery (including to have all motions to compel heard):
4 February 15, 2006;
5 Last day to disclose expert witnesses: January 15, 2006.
6 VII. ALTERNATIVE DISPUTE RESOLUTION (ADR)
7 Plaintiff is amenable to mediation of the individual and class claims. Plaintiff would
8 propose private mediation.
9 IX. CALENDAR CONFLICTS
10 Plaintiff and her counsel are not aware of any calendar conflcts at ths time.
11
12 Respectfully Submitted,
13 Date: Februar 7, 2006
14
15
16
17
18
19
20
21
22
SCHNEIDER & WALLACELAW OFFICE OF LINDA ROSSROBOOSTOFF & KALKl, PLC
~ll:niA~ ~Counsel for Plaintiff
23
PLAINTIFF'S COMPLEX CASE MANAGEMENT CONFERENCE STATEMENT
Campbell v. Sutter Health et al., Case No. RG05221764
4
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 46 of 65
8
9
10
II
12
13
14
15
16
17
18
PROOF OF SERVICE
2
3
4
5
6
Sections 10I3(a), 2015.5 C.C.P.
Campbel et at. v. Sutter Health,Alameda Superior Court Case No.: RG05221764
I am a citizen of the United States and am employed in the County of San Francisco. I am
ver the age of eighteen years and not a pary to the within entitled action. My business address is
7 180 Montgomery Street, Suite 2000, San Francisco, CA 94104.
On Februar 7, 2006, I served the following:
i. Plaintiff's Complex Case Management Conference Statement
n the paries by placing tre copies thereof for facsimile transmission to the number listed below
d in a sealed envelope, postage fully prepaid, for deposit in the United States Mail at San
rancisco, California, addressed as follows:
Marcia AugsburgerMcDonough Holland & AJlen PC
555 Capitol Mall, 9th FloorSacramento, CA 94814-4692
Facsimile: (916) 444-8334
I declare under penalty of peijur under the laws of the State of Californa that the foregoing
19 's tre and correct and that ths Declaration is executed on Februar 7, 2006, at San Francisco,
20
21
22
23
24
25
26
27
28
SCHNIDER& WALLACE
alifomIa.
-1-
PROOF OF SERVICE
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 47 of 65
44
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 48 of 65
,,.,
2
liæ!IIII"~IWI~lill*4244697*
SUPERJOR COURT OF THE STATE OF CALIFORN EN D 0 R SEDFILEDIN AN FOR THE COUNY OF ALAMDA ALAMEDA COUNTY
APR 1 8 Z006
3
4
5
LINDA CAMBELL, on her own behalf,6 d on behalf of all others similarly situated,
7 Plaitiffs,8 v.9
UTfR HEALTH, and DOES 1 though 24,10 nelusive.
11 Defendats.
12
13
No. RG05-221764 CLERK OF THE SUPERIOR COURT
By E. Opelski.Erickson, Deputy
ORDER (1) OVERRULING IN PART ANSUSTA1G WITHOUT LEAVE TOAMND IN PART TH DEMUR TOTHE FIRST AMNDED COMPLAIT AN(2) FINDING ORDER SUIABLE FORINTERLOCUTORY REVIEW UNDERC.C.P.166.1.
Date: Febru 9, 2006
Time: I :30 p.m.Dept.: 22
14
15
16 The demurer of Defendant Sutter Health to the First Amended Complaint came on for
17 hearng on Febru 9, 2006, in Departent 22 of ths Cour the Honorable Ronad M. Sabraw
18presiding. Counel appeared on bebalf of Plaitiff and on behalf of Defendant. Afer
19consideration of the points and authorities and the evidence, as well as the oral arguent of
20
21
counel, IT is ORDERED: Demurrer of Sutter Health to First Amended Complaint is
OVERRULED IN PART and SUSTAID WITHOUT LEAVE TO AMND IN PART. The
22
23 Cour also finds ths order suitable for interlocutory review under C.C.P. 166.1.
24 Plaintiff asserts that Sutter Health engages in a practice called "balance biling" by
25 improperly fùing liens under the Hospital Lien Act, Civil Code 3045.1 et seq (the "HLA").
26
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 49 of 65
PlaitÌffasserts that the improper filing of the HLA liens is unawfl, even ifno money is
2 collected on the liens.
3
4WHT is A LllN UNER THE HOSPITAL LllN ACT?
5It is unclear whether the delivery and/or filing of notice ofaHLA lien is in the natue of
litigation activity. The answer to this question determines what claims Plaintiffs can purue.
If providing notice of a HLA lien is simply providing notice, then provision of the notice
would not be protected by the litigation privilege. This is suggested by the plaiD language of
Civil Code 3045.3, which makes clear that notice of a lien can be served by mail and that there is
6
7
8
9
10no requirement that a notice of lien be filed in a cour file in a pending civil action. If
notice ofa
IIHLA lien is not litigation activity, then the litigation privilege would not apply. Under ths
12approach, Plaintiffs should frame their claims as ones for interference with contract, violation of
13the CLRA, and violations of the UCL. i
14If providing notice of a HLA lien is legal action equivalent to intiatig legal proceedings,
then providing notice of a lien would be protected by the litigation privilege. The Cour taes
judicial notice that liens are customarily filed in cour files. Presumably based on ths common
15
16
17practice, the Cour in Swanson v. St. John's Reg'l Medical Ctr. (2002) 97 Cal. App. 4th 245, 249
(disapproved of on other grounds in Parnell), held that "Lien notices authorized by law are
protected by the litigation privilege." If notice ofa RiA lien is litigation activity,.then Plaitiffs
should frame their clais as ones for malicious prosecution and abuse of process. 2
18
I'
20
21The Cour is guided by the rationale of Wilton v. Mountain Wood Homeowners Assn., Inc.
22 (1993) 18 Cal. App. 4th 565. Wilton concerned whether or not the filing ofa lien by a
23
24i This is the route taken by Plaintiff in the original Complaint. By order dated November 6, 2005, the
Court sustained a demurrer to the original complaint, held that a HLA lien is in the nature of
litigation
activity and granted leave to allege a claim for malicious prosecution and/or claims for unlawfl or unfaircompetition that borrow from or are tethered to the law of malicious prosecution.
25
262 This is the route taen by Plaintiff in the First Amended Complaint that is the subject of this demurrer.
2
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 50 of 65
homeowner's association with the county recorder under Civil Code 1367 was protected by the
2 litigation privilege. The Cour held that even though the filing of a lien with the county recorder
3 is not "in" judicial proceedings, it is a prerequisite to judicial proceedings and is covered by the
4 litigation privilege. The Court stated that although mechancs' liens and homeowners'
5 assessment liens are not actual litigation, they are "pennitted by law to achieve the object of
6 litigation" and are closely related to judicial proceedings because they must be filed as a fist step
7 in foreclosure actions to remedy defaults. The Cour held the litigation privilege applies even
8 though the liens can be enforced by either judicial foreclosure or by private power of sale.
9 HLA liens are similar to homeowner's association liens in that they are not filed with
10 cour to intiate or prosecute civil litigation, but are prerequisites to judicial proceedings and
II designed to achieve the object of litigation. Civil Code 1367(e); Civil Code 3045.4. Therefore,
12 the Cour concludes that giving notice of a HLA lien under Civil Code 3045.3. is equivalent to
13 filig a complaint in a civil action.
14
15 MAICIOUS PROSECUTION.
16 Demurer is OVERRULED.
17 To establish a cause of action for the malicious prosecution of a civil proceeding, a
is plaitiff must plead and prove that the prior action (1) was conuenced by or at the direction of
19 the defendat and was pursued,to a legal tennination in his, plaintiffs, favor; (2) was brought or
20 contiued without probable cause (citations); and (3) was initiated or continued with malice.
21 Zamos v. Stroud (2004) 32 CaL. 4th 958, 965-66.
22 The complaint adequately alleges that the prior action (the notice of a lien) was in the
23 natue of a civil action commenced by or at the direction of the defendant.
24 The complaint adequately alleges that under Parnell v. Adventist Health System/est
25 (2005) 35 Cal. 4th 595, the Court can find that all HLA liens that have been fied in cases where
26
3
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 51 of 65
the Hospita has been paid in full are without merit as a matter of law and that the
2 patient/plaitiff is the prevailing part. 3
3 The complaint adequately alleges that the fITA liens were fied or maintained without
4 probable cause and were initiated or continued with malice and/or a conscÌous disregard for the
5 law.
6 The Cour notes that in future motions it may be appropnate to address issues of
probable
7 cause, malice, and conscious disregard based on the state of the law in relevant time periods.
8 The state of the law might be divided into thee time periods: (I) before Swanson (3/5/02); (2)
9 afer Swanson and before Parnell (4/4/05); and (3) afer Parnell. Tbe analysis migbt also be
10 afected by the facts of what Defendant knew and what it was told by its lawyers and any relevant
11 trade groups. These appear to be fact issues that canot be resolved on demurer.
12
13 ABUSE OF PROCESS.
14 Demurer is SUSTAID WITHOUT LEAVE TO AMND. The elements of abuse or
is process are (1) an ulterior motive in using the process and (2) the use of
the process in a wrongfl
16 maner. Abraham v. Lancaster Community Hosp. (1990) 217 Cal. App. 3d 796, 826.
17 Consistent with the discussion regarding the natue of a HLA lien, the Cour presumes
IS that serving notice of a HLA lien is the use of
the Cour's process. . This is a stretch given tht a
19 person can serve a HLA notice by mail and never file it with any Cour, much less obtai aCour
20 order.
21 The complaint alleges that Defendant was using the HLA lien process to do exactly what
22 liens are supposed to do - to notify someone that a debt is allegedly owed and that money should
23
24
25 i Given that a HLA lien can be established through service by mail and might never involve a filing with
any Court, the "prevailng part" analysis might need to be adapted to concern a claim for money rather
than to concern a civil action.26
4
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 52 of 65
be paid to the person with the lien and not to some other person. Therefore, Plaitiffs canot
2 prove that Defendant was using of the process in a wrongfl maner.
3
4 CONVRSIONrrRESPASS and FRAUD.
5 Demurers are SUSTAIND WITHOUT LEAVE TO AMND. These claims are baned
6 by the litigation privilege.
7
8 UCL.
9 Demurer is OVERRULED. The UCL claim borrows from and/or is tethered to the
10 claims for malicious prosecution. The demurrer to this cause of action is treated the same as the
i i demurer to the malicious prosecution claim.
12
13 SUITABILITY FOR APPELLATE REVIEW.
14 The natue of a HLA lien is a novel issue that is suitable for interlocutory review under
i5 C.C.P. 166.1. There is a substatial ground for difference of
opinion on this issue given the
16 apparent confict between (1) the plain language of Civil Code 3045.3 that notice can be served
17 by mail and need not be fied in any civil action and (2) the statement in Swanson that "Lien
IS notices authorized by law are protected by the litigation privilege." There also appears to be
19 some tension between Wilon, which suggests that actions short of
liigation are covered by the
20 litigation privilege, and Adams v. Superior Court (1992) 2 Cal. App. 4th 521,528, wbicb balds
21 that only the initiation of full-blown actions wil support a claim for malicious prosecution.
22 It would seem wrong to hold that serving notice of a HLA lien is suffciently like
23 litigation to be covered by the litigation privilege (bafng all claims except malicious
24 prosecution and ab\lse of process), Swanson, supra, but falls short of
being actual litigation so
25 Plaintiffs canot pursue or prevail on claims of
malicious prosecution and abuse of process,
26
5
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 53 of 65
Adams, supra. The alternative, that filing or serving notice of a HLA lien is not litigation, would
2 solve ths problem, but would run contrary to holdig in Swanson and the rationale of Wilton.
3 Appellate resolution of this matter wil materially advance the resolution of
the case
4 because if the Cour is wrong on this issue, then the rest of
the case will also be wrong. The
5 Cour fids that ths issue is appropriate for interlocutory review.
6
7 FURTHER PROCEEDINGS.
8 Defendant must fie an answer on or before May 4, 2006.
,
~/J~Judge Ronald M. Sabraw
10
Dated: April I 8',200611
12
13
14
15
16
17
18
I'
20
21
22
21
24
25
26
6
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 54 of 65
Case TltlefNo.: Campbell vs. Sutter Health RG05221764
CLERK'S CERTIFCATE OF MAILING
I certify that the following is tre and correct: I am the clerk of the Alameda County Superior Courand not a par to tbis cause. I served this ORDER (I) OVERRULING IN PART ANDSUSTA1G WITHOUT LEAVE TO AMND IN PART THE DEMUR TO THE FIRSTAMNDED COMPLAIT AND (2) FINING ORDER SUITABLE FOR INTERLOCUTORYREVIW UNER CCP 166.1 by placing copies in envelopes addressed as shown below and thenby sealing and placing them for collection, stamping or meterig with prepaid postage, and mailingon the date stated below, in the United States mail at Alameda County, California, followingstandard cour practices.
Todd M. SchneiderJoshua KoneckyW.H. "Han" Wilson
SCHNIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, CA 94104
/ Marcia Augsburger
MCDONOUGH HOLLAND & ALLEN PC555 Capitol Mall, 9il FloorSacramento, CA 94814-4692
Linda RossLAW OFFICE OF LINA ROSS2204 Union StreetSan Fracisco, CA 94123
Scott KalknROBOOSTOFF & KAKl, PLC369 Pine Street, Suite 610San Fracisco, CA 94104
Dated: Apri119, 2006 Executive Offcer/Clerk of tbe Superior Cour
ByElizabeth Opelski-E 'c erk
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 55 of 65
45
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 56 of 65
,06/02106 10:04 FAX 916 r .89 MilA
1 McDONOUGH HOLLAND & ALLEN PCAttorneys at Law
2 RICHA E. BRADT (44893) .MACIA L. AUGSBURGER (145686)
3 JOHN C.J. BARS (216694)555 Capitol Mall, 9th Floor
4 Sacrento, CA 95814Phone: 916.444.3900
5 Fax: 916.444.8989
6 Attorneys fOT Defendant Sutter Health
7
g
9
. ~~U~~~\i\~\\\U~\I~m~\\.,. i .4839151
n1f.jlri I .'. . .-_.:~' ... '""...!.I!'i.'.0/1. C01iNTY
JUN - 2 2naS
c: -,.,. C' T"-' ._,...., , i ".: ~"t'~ .rCR c."..,-'~\ yy ~,. . v., ,it, ---",. \, '. --/ , ,, ..-,-..~;!y"__'" '::'r y __.. __v~_ '..,~__¡ ---.._(..-!.._- -..-ë(¡;ff
SUPERIOR COURT OF CALIFORNIA
COUN OF ALAMEDA
10 MELINDA CAMPBELL, on her own behaf, )and on behalf of all others similarly situted, )11 )Plaitiffs, )12 )~ )13 )SUTRHEALTH and DOES 1 thougl24, )14 inclusive. )
)15 Defendants. ))16 ))
17
18
19
20
21
Case No. RG0522¡764
DEFENDANT SUTER HEALTH'SANSWER TO FIST AMNDED CLASSACTION COMPLAI
HESPONSE TO UNRID COMPLAI(General Denial)
Defendant Sutter Health ("Sutr Health") denies, generaly and spcificaly. each an every
alegation in the complait Suttr Health denes generaly and specifically, each purorted cause of
acton contaned in the complaint and fuer dewes that Plaintiff and aU other similarly situted22 ,. C1Plaintift') is entitled to recovery or any relief or remedy as requested or in any other form
23
24whatsoever against ths answering defendant
FIT AFFITIV DEFENSE25 (Failure to State a Cause of Action)2611e complait, and each purorted cause of action therein contained: fails to stte facts
27 sufcient to state a cause of action against Sutter Health,
)-(U
)a28
MT-..-....."'-"'" Defendant Sutter Bealtb's Answer to
1054S621.1ii-6It:iimNded Clas Action Complaint 91SZ40 0950410501
?Lbb.
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 57 of 65
28
Mf
,
1 McDONOUGH HOLLAND & ALLEN PCAttorneys at Law
2 RICHARD E. BRAT (44893)MACIA L. AUGSBURGER (145686)
3 JOHN C.J. BARES (216694)555 Capitol Mall, 9th Floor
4 Sacramento, CA 95814Phone: 916.444.3900
5 Fax: 916.444.8989
6 Attorneys for Defendant Sutter Health
7
8
9
SUPERIOR COURT OF CALIFORNA
COUNTY OF ALAMDA
10 MELINA CAMPBELL, on her own behalf,and on behalf of all òthers similarly situated,
) Case No. RG05221764)) DEFENDANT SUTTER HEALTH'S). ANSWER TO FIRST AMENDED CLASS) ACTION COMPLAINT)))))))))
11
12
13
Plaintiffs,
v.
SUTTER HEALTH and DOES 1 though 24,14 inclusive,
15 Defendants.16
17
18
19
20
2i
RESPONSE TO UNRIIED COMPLAIT(General Denial)
Defendant Sutter Health ("Sutter Health") denies, generally and specifically, each and every
allegation in the complaint. Sutter Health denies generally and specifically, each purorted cause of
action contained in the complaint and fuer denies that Plaintiff and all others simlarly situated22
23
24
("Plaintiff!) is entitled to recovery or any relief or remedy as requested or in any other form
whatsoever against this answerig defendant.
FIRT AFFIRTIVE DEFENSE25 (Failure to State a Cause of Action)26 The complaint, and each purorted cause of action therein contained, fails to state facts
27 suffcient to state a cause of action against Sutter Health.
i__.....ocAuoii- Defendant Sutter Health's Answer to
First Amended Class Action Complaint 928240v209504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 58 of 65
27
28
M-
i SECOND AFFIRTIVE DEFENSE(Defect or Misjoinder of Parties)
Plaintiff and any class she purports to represent are not entitled to any relief against Sutter
Health by reason ora defect or misjoinder of paries, pursuant to section 430.10(d) of the California
Code of Civil Procedure.
2
3
4
5THI AFFIRTIV DEFENSE6 (privilege and Justification)
7 Both by statute and by common law, Sutter Health was privileged and justified in acting as it
8 did, and acted in accordance with law, and therefore canot be liable for Plaintiffs damages, if any
9 there be.
10 FOURTH AFFIRATIV DEFENSE
(Improper "Class Action")11
12
13
14
Plaitiffs class allegations fail to satisfy the required prerequisites to brig a class action
under California Code of Civil Procedure section 382 and/or Business and Professions Code section
17200.
FIFTH AFFIRTIVE DEFENSE15 (Lack of Capacity or Standing to Sue)
16 Plaintiff lacks capacity or standing to sue, in her own right, as a class representative, and/or
17 as a representative of the general public.
18
19
20
21
22
23
SIXTH AFFIRTIVE DEFENSE(Res Judicata, Collateral Estoppel, and Stare Decisis)
As a result of prior judgments, the claims asserted by Plaintiff and any class she purorts to
represent are bared by the doctrines of res judicata, collateral estoppel and stare decisis, by
principles of fairness and equity which authorize a litigant to rely on a cour judgment and not be
penalized for doing so, by the unconscionabilty of the application of different judgments requiring
different conduct, and by related concepts.24
25
26SEVENTH AFFIRMTIV DEFENSE
(Judicial Estoppel)
Plaintiff is bared from any recovery against Sutter Health by reason of the doctrine of
judicial estoppel.
2-_....~""--.... Defendant Sutter Health's Answer to
First Amended Class Action Complaint 928240\'09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 59 of 65
25
26
27
28
MH
1
2
3
4
EIGHTH AFFIRMATIVE DEFENSE(Settlement and Release)
The matters alleged in the complaint are encompassed within and barred by settlement and
release agreements, which operate as a merger and bar against any fuer litigation on matters raised
or potentially raised in connection with the settlements and releases.5
NITH AFFIRTIVE DEFENSE6 (prematurity and Failure to Exhaust Remedies)
7 Plaintiff and the members of any class she purports to represent have failed to exhaust
8 available remedies and this lawsuit is premature.
9 TENTH AFFIRTIVE DEFENSE(Waiver and Estoppel)
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
By conduct, representations and omissions, Plaitiff has waived, relinquished and/or
abandoned, and is equitably estopped to assert, any claim for relief against Sutter Health respecting
the matters which are the subject of the complaint.
ELEVENTH AFFIRTIVE DEFENSE(Unjust Enrichment)
Plaintiff would be unjustly enriched if allowed to recover on ths complait.
TWELFTH AFFIRATIV DEFENSE(Due Process)
Requirg Sutter Health to litigate in ths case whether it maliciously prosecuted claims that it
did not pursue in a prior action, and/or that did not result in a judgment in Plaintiffs favor, but rather
are being litigated for the first time in ths lawsuit, is contrary to law and would violate Sutter
Health's right to due process.
THITEENT AFFIRTIV DEFENSE(Failure to Comply With Statutory Prerequisites)
The cause of action for unai competition is bared by Plaitiffs failures to comply with
Business and Professions Code sections 17200 et seq.
FOURTEENTH AFFIRMATIV DEFENSE(Business and Professions Code section 17204)
The complaint is bared under Californa Business aId Professions Code section i 7204.
3_.....'".-.... Defendant Sutter Health's Answer to
First Amcndcd Class ActÎon Complaint 928240v209504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 60 of 65
24
25
26
27
28
Ml
1 FIFTEENTH AFFIRMATIVE DEFENSE(Due Process and Equal Protection)
Any finding of liability pursuant to California Business and Professions Code sections
17200, 17203 and 17204 would violate the Due Process and Equal Protection Clauses of the United.
2
3
4States and Californa Constitutions because the standards of liability under those statutes are unduly
5
6
7
vague and subjective, and permt retroactive, random, arbitrar and caprici~us punishment that
serves no legitimate governental interest.
SIXTEENTH AFFIRMATIV DEFENSE8 (Failure to Do Equity)9 No relief
may be obtained under the complaInt by reason of the Plaintiffs failure to do equity
ioin the matters alleged in the complaint. This complait was not commenced and has not been
i 1 prosecuted in good faith and for a proper purpose.
i2 SEVENTEENTH AFFIRMTIVE DEFENSE(Estoppel by Improper Purpose)
13
14
15
16
17
18
19
20
21
22
23
This litigation is bared because it was commenced and is prosecuted to obtai attorneys'
fees for the benefit of counel for the Plaintiff and not for any legitiate or cognizable purose
recogned in Californa law; Plaitiff and the class she purorts to represent and her counsel are
bared and estopped from proceeding in this action by reason of their improper purose and violation
of applicable principles of ethcs, equity and law.
EIGHTEENTH AFFIRMATIV DEFENSE(Unclean Hands)
No relief may be obtained under the complaint by r~ason of the doctre of unclean hands
and by reason of the unconscionability of the Plaintiffs acts and claims.
NITEENTH AFFIRTIVE DEFENSE(Setoff and Reeoupment)
Without conceding that any act of the defendant caused damage to Plaintiff or any other
person in any respect, Sutter Health alleges tht it is entitled to offset and recoup againt any
judgment that may be entered against it all obligations of Plaintiff owig to Sutter Health.
III
III
4-..-"..""_.... Defendant Sutter Health's Answer to
First Amended Class Action Complaint 928240v2 09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 61 of 65
1
2
TWENTIETH AFFIRMTIVE DEFENSE(Failure to Mitigate)
Plaintiff has failed to mitigate or attempt to mitigate damages, if in fact any damages have
been or wil be sustained, and any recovery by Plaintiff must be diminished or barred by reason3
4
5
thereof.
TWENTY-FIRST AFFIRTIVE DEFENSE6 (Damage, if any, Caused by Others)
7 Sutter Health is informed and believes and thereon alleges that any injur or damage
8 sustained by Plaintiff was proximately caused by the acts or omissions of persons or entities other
9 than Sutter Health.
10 TWENTY-SECOND AFFIRTIV DEFENSE(Failure to Exercise Due Care)
11
12
13
14
15
16
Plaintiff did not exercise ordinar care, caution and prudence in connection with the
transactions and events alleged within the complaint, and plaintiff is therefore bared entirely from
recoverY' against Sutter Health or alternatively, plaitiff should have th~ recovery, if any,
proportionately reduced. Moreover, Plaintiff directed, ordered, approved and/or ratified the alleged
wrongful acts set fort in the complaint. Plaintiff is therefore bared from recovery against Sutter
Health, or, alternatively, Plaintiff should have any recovery proportionately reduced.17
TWENTY-THI AFFIRATIV DEFENSE18 (Statute of Limitations)19 The complait and its causes of
action are bared by sections 335.1 of the Californa Code of
20 Civil Procedure and 17208 of the Business and Professions Code.
21 TWENTY-FOURTH AFFITIV DEFENSE(Laches)
22Plaintiff is bared from any recovery against Sutter Health by reason of the doctre of laches
23and undue delay in giving notice to Sutter Health of the matters alleged in the complaint and in
24
25commencing this litigation.
TWENTY-FIFTH AFFIRMATIV DEFENSE26 (Abstention)27 The Cour should abstain from takg action in these areas, which are within the primar
28 jurisdiction of legislative and/or regulatory bodies.MH 5_i-...'"-..,i. Defendant Sutter Health's Ans\ver to
First Amended Class Action Complaint 928240v209504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 62 of 65
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MH
1
2
3
4
TWENTY-SIXTH AFFIRMATIVE DEFENSE(Adequate Legal Remedy)
Plaintiffs injury or damage, which Sutter Health denies exists, would be adequately
compensated in an action at law for damages. Accordingly, plaintiffs and- their class have a
complete and adequate remedy at law, if any is available, and are not entitled to seek injunctive and5
other equitable relief.
WHREFORE, Defendant Sutter Health prays for judgment as follows:6
7
8
9
1. That Plaintiff take nothing by the complaint;
2. That Sutter Health receive an award of costs of suit herein; and
3. That Sutter Health reccIve an award of such other and further relief asthis Court deems proper.10
Ii DATED: Thursday, June 1, 2006
12 Respectfully submitted,13 McDONOUGH HOLLAND & ALLEN PC
Attorneys at Law
'.
GSBURGEBy:
Attorneys for Defendant Sutter Health
6-_...'"....Lo Defendant Sutter Health's Answer to
First Amended Class Action Complaint 928240v2 09504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 63 of 65
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Mt-_......._.~
1
2
3
4
CASE TITLE:
COURT/CASE NO:
Melinda Campbell, el al. v. Sutter Health, el al.
Alameda County Superior Cour No. RG05221764
I am employed in the County of Sacramento; my business address is 555 Capitol Mall, 9thFloor, Sacramento, California 95814. I am over the age of eighteen years and not a par to the
foregoing action.
I am readily familar with the business practice at my place of business for collection and
processing of correspondence for mailing with the. United States Postal Service. Correspondence socollected and processed is deposited with the United States Postal Service that same day in theordinary course of business.
5
6
7
8
9
10
11
12
LJ
PROOF OF SERVICE
On June 2, 2006, 1 served the withn:
(1) Defendant Sutter Health's Answer to First Amended Class Action Complaint
DD
D
by mail on the following par(ies) in said action, in accordance with Code of Civil
Procedure § 1013a(3), by placing a tre copy thereof enclosed in a sealed envelope in adesignated area for outgoing mail, addressed as set forth below. At McDonoughHolland & Allen PC, mail placed in that designated area is given the correct amount ofpostage and is deposited that same day, in the ordinar course of business, in a United
States mailbox in the City of Sacramento, California.
by personally delivering a tre copy thereof, in accordance with Code of CivilProcedure § lOi 1, to the person(s) and at the addressees) set fort below.
by overnight delivery on the following pary(ies) in said action, in accordance withCode of Civil Procedure § 1013(c), by placing a true copy thereof enclosed in a sealedenvelope, with delivery fees paid or provided for, and delivering that envelope- to anovernight express service carier as defined in Code of Civil Procedure § l013(c)..
by facsimile transmission, in accordance with Code of Civil Procedure § I013(e), tothe followig part(ies) at the facsimle number(s) indicated:
1
889827v309504/050ZProof of Service
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 64 of 65
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MH~Ho_&A1""oi_.~
I
2
3
4
5
6
Todd M. SchneiderJoshua KoneckyW.H. "Han" Wilson
SCHNEIDER & WALLACE180 Montgomery Street, Suite 2000San Francisco, CA 94104Telephone: (415) 42i-7100Facsimle: (415) 421-7105
Counsel for PlaIntiffs
7Courtesv Copv to: Co-counsel for Plaintiffs
Linda RossLAW OFFICE OF LINDA ROSS2204 Union StreetSan Francisco, CA 94123Telephone: (415) 563-2400Facsimile: (415) 931-9981
Scott Ka1kinROBOOSTOFF & KALKIN, PLC369 Pine Street, Suite 610.San Francisco, CA 94104Telephone: (415) 732-0282Facsimile: (415) 732-0287
I declare under penalty of perjur under the laws of the State of California that the foregoing istre and correct and that this docwnent was executed on June 2, 2006.
dßø/n' g~RENEE REEVE
2
Proof of Service 889827v309504/0502
Case 3:07-cv-03406-MMC Document 2-6 Filed 06/28/2007 Page 65 of 65