. 1 VANESSA L. EFREMSKY, ESQ. (State Bar No. 195973); vefremsky@dndmlawyers.corn
`SONJA M. DAHL, ESQ. (State Bar No. 130971); sdahl@dndmlawyers.corn
`2 DONNELLY NELSON DEPOLO MURRAY & EFREMSKY
`A Professional Corporation
`201 North Civic Drive, Suite 239
`Walnut Creek, CA 94596
`4 Tel. No. (925) 287-8181
`Fax No. (925) 287-8188
`
`E-FILED
`11/8/2019 1:26 PM
`Superior Court of California
`County of Fresno
`By: J. Nelson, Deputy
`Attorneys for Defendants
`AMERICAN AMBULANCE, BRINA PORT)LLO, ASHLEY BOWMAN,
`7 ALLISON FREER and KATHERINE SCHNEIDER
`
`5 6
`
`3
`
`8
`
`9
`
`10
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY
`
`OF FRESNO
`
`11 NICHOLAS R. MERLO, by and through his
`Conservator and Guardian ad Litem, KACI K.
`12 MERLO, and KACI K. MERLO, individually,
`
`13
`
`oo
`
`Plaintiffs,
`
`vs.
`
`15
`
`16
`
`PRISTINE SURGERY CENTER, INC.,
`PRAHALAD B. JOJODIA, M.D., SIMRANJIT
`SINGH BASSI, ORNA, AMERICAN
`AMBULANCE, BRINA PORTILLO, ASHLEY
`17 BOWMAN, ALLISON FREER, JEFFREY
`SCHNEIDER, and Does 1 to 20,
`
`Case No. 18CECG03026
`
`EVIDENCE IN SUPPORT OF INOTION OF
`DEFENDANT BRINA PORTILLO FOR
`SUMMARY JUDGMENT
`
`January 23, 2020
`Date:
`Time: 3:30 p.m.
`Dept.: 501
`
`Complaint Filed: August 13, 2018
`Trial: March 2, 2020
`
`ASSIGNED FOR ALL PURPOSES TO:
`JUDGE JEFFREY Y. HAIMILTON
`
`z
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`Defendants.
`
`COMES NOW Defendant BRINA PORTILLO and presents the following Evidence in support
`
`of her Motion for Summary Judgment.
`
`Exhibit A
`
`24 Exhibit B
`
`25
`
`Exhibit C
`
`Exhibit D
`
`Exhibit E
`
`28
`
`TABLE OF CONTENTS
`
`Complaint
`
`Answer
`
`Records of American Ambulance
`
`Deposition of Brina Pottillo
`
`Deposition of Allison Freer
`
`1
`18CECG03026; EVIDENCE IN SUPPORT OF MOTION OF DEFENDANT BRINA PORTILLO FOR
`SUMMARY JUDGMENT
`
`

`

`
`
`
`
`Corporation
`
`
`
`DONNELLYNELSONDEPOLOMURRAY8:EFREMSKYAProfessional
`
`
`
`Exhibit F V
`
`Deposition of Katherine Schneider
`
`Exhibit G
`
`
`Deposition of Simranjit Bassi, CRNA
`
`
`
`Exhibit H
`
`
`Deposition of Prahalad Jajodia, MD.
`
`
`Exhibit |
`Records of Pristine Surgery Center
`
`
`
`Exhibit J
`
`Declaration of Gary Tamkin, MD.
`
`
`Exhibit K
`Declaration of Michael Marsh, NRP
`
`
`
`
`Declaration of Rick Carvalho
`Exhibit L
`
`
`Exhibit M
`Deposition of Marlene Valdez
`
`
`Exhibit N
`
`Exhibit O
`
`Exhibit P
`
`Deposition of Rachel Abracosa
`
`
`
`Deposition of Rodney Burnes
`
`
`
`Declaration of Sonja M. Dahl, Esq.
`
`Dated: November 7, 2019
`
`DONNELLY NELSO r’ifEOLO MURRAY & EFREMSKY
`
`
`
`
`
`
`
`SONJA M. D
`
`AHL
`
`Attorney for Defendants
`AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY
`BOWMAN, ALLISON FREER and KATHERINE
`SCHNEIDER
`
`0301th
`
`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`2
`IBCECG03026: EVIDENCE lN SUPPORT OF MOTION OF DEFENDANT BRINA PORTILLO FOR
`
`600-10779/SMD/487B31.doc
`
`SUMMARY JUDGMENT
`
`

`

`EXHIBIT A
`
`\
`
`EXHIBIT A
`
`

`

`
`PLD-Pi-UO
`
`
`FOR COURT use ONLY
`1'
`ATTORNEY 0R PARTY WITHOUT ATTORNEY‘WnnIo, State Bar number. and address):
`
`
`Daniel R. Baradat, 068651
`
`Baradat & Paboojian,
`Inc.
`
`
`720 W. Alluvial Ave.
`
`Fresno, CA
`93711
` E—FILED
`
`
`8/13/2018 2:03 PM
`
`
`TELEPI-IONENO: (559) 431—5366
`FAXNDJOpIio/Ial).
`(559) 431*1702
`F
`eMAIL ADDRESS (Optional): drbiplaw— inc . com
`
`-ESNO COUNTY SUPER/OR COUR
`
`
`ATTORNEYFOR NamazNICHOLAS R. MERLO
`KACI K. MERLO
`By: M. Sanchez, Deputy
`
`
`
`SUPERIOR COURT OF CALIFORNIA. COUNTY OF FRESNO
`
`
`STREETADDRE5521130 O St.
`
`MAILING ADDRESS:
`
`
`
`
`
`
`PLAINTIFFzNICHOLAS R. MERLO, by and through his
`Conservator and Guardian act Litem, KACI
`Ix”. MERLO, and KACI
`
`K. MERLO,
`Individually
`
`
`DEFENDANT: PRISTINE SURGERY CENTER,
`
`
`
`COMPLAINT—Personal Injury, Property Damage, Wrongful Death
`
`VJ AMENDED (Number):
`_
`Type (check all that apply):
`__‘j MOTOR VEHICLE
`I‘ Property Damage
`5:: Personal Injury
`
`CITYANDZIPCODE: Fresno, CA
`BRANCH NAME:
`
`93711
`
`'
`
`
`
`I:x_j DOES i To 20
`
`
`
`INC., et al.,
`
`
`
`
`
`
`
`
`
`
`
`
`i123 OTHER (specify): Medical Malpractice
`[:7 Wrongful Death
`
`L] Other Damages (specify):
`
`
`Jurisdiction (check all that apply):
`
`
`2:5? ACTION IS A LIMITED CIVIL CASE
`CASE NUMBER:
`
`
`Amount demanded
`[:3 does not exceed $10,000
`
`18CECGO3026
`
`L_I exceeds $10,000, but does not exceed $25,000
`"1i ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000)
`
`
`
`=4 ACTION Is RECLASSIFIED by this amended complaint
`
`
`
`_____J'
`from limited to unlimited
`
`L, from unlimited to limited
`
`
`
`
`1. Plalntiffmams ornames):NICHOLAS R. MERLO, by and through his Conservator and Guardian
`act Litem, KACI K. MERLO and KACI K. MERLO Individuall
`alleges causes ofacuon a ainst defendant name 0, names), PRISTINESURGERY CENT
`,INC.. PRAI—IALAD B. IO)ODIA.1VI.D.,SIMRANJI'1‘
`smcn BASSI. CRNA. AMERICAN gMBULANCE. BRIN PORTILLO, ASHLEY BOWMAN, ALLISON mean, JEFFREY SCHNEIDER. and DOES i-20
`2. This pleading, Including attachments and exhibits, consists of the following number ofpages:
`4
`x
`3. Eachpiaintiff named above Is a competent adult
`a. LA) except plaintiff (name): NICHOLAS R. MERLO
`('l) C a corporation qualified to do business in California
`(2) [:1 an unincorporated entity (describe):
`(3) : a public entity (describe):
`(4) L) a minor El an adult
`(a) 3 7—7 for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
`
`(b) T other (specify):
`(5) Z other (specify):
`
`b. :I except plaintiff (name):
`(1) 5__-
`a corporation qualified to do business in California
`(2) t: an unincorporated entity (describe):
`(3) i: a public entity (deco/the):
`(4)
`.=__‘ a minor 3 an adult
`(at) 2 for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
`(b) _I other (specify):
`’
`'
`.I other (specify):
`
`(5)
`
`

`

`SHORTTITLEzMERLO V. PRISTINE‘.
`
`PLD-Pl—001
`
`CASE NUMBER: r*—“
`
`4..
`
`P Plaintiff (name):
`
`is doing business under the fictitious name (specify):
`
`and has complied with the fictitious business name laws.
`
`5. Each defendant named above is a natural person
`a. rm. except defendant (name):
`
`c. :1 exceptdefendant (name):
`
`j a business organizationrform unknown
`(1)
`(2) [:j a corporation
`(3) i:] an unincorporated entity (describe):
`
`(1) D a business organization, form unknown
`(2) :3 a corporation
`(3) :3 an unincorporated entity (describe).-
`
`(4) {:3 a public entity (describe):
`
`(4) :3 a public entity (describe):
`
`(5)
`
`l..__
`
`other (specify):
`
`(5) f:l other (specify):
`
`b. _:i except defendant (name):
`
`d. i: except defendant (name):
`
`(1) [:3 a business organization. form unknown
`(2)
`_i a corporation
`(3) :3 an unincorporated entity (describe):
`
`(1) :g a business organization. form unknown
`(2) i.___:_! a corporation
`_
`(3) l» :3 an unincorporated entity (describe):
`
`(4)
`
`:‘ a public entity (describe):
`
`(4) :7 a public entity (describe):
`
`(5) [: other(specify):
`
`(5) Z other (specify):
`
`:_: Information about additional defendants who are not natural persons is contained in Attachment 5.
`“—\
`6. The true names of defendants sued as Does are unknown to plaintiff.
`were the agents or employees of other
`a. l X r Doe defendants (specify Doe numbers): 1—1 0
`named defendants and acted within the scope of that agency or employment.
`
`b. QT] Doe defendants (specify Doe numbers): 1 1 - 2 O
`plaintiff.
`Defendants who are joined under Code of Civil Procedure section 382 are (names):-
`
`are persons whose capacities are unknown to
`
`7,
`
`8. This court is the proper court because
`a. Lid at least one defendant now resides in its jurisdictional area.
`b. E: the principal place ofbusiness of a defendant corporation or unincorporated association is in its jurisdictional area.
`c.
`.353 injury to person or damage to personal property occurred in its jurisdictional area.
`d.
`i____; other (specify):
`
`9.
`
`Plaintiff is required to comply with a claims statute, and
`a. E has complied with applicable claims statutes. or
`b.
`g
`__j is excused from complying because (specify):
`
`

`

`
`
`PLD-PI-OO’l
`
`SHORTTITLE; MERLO v, PRISTINE
`rsm‘apu-m
`
`10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more
`causes of action attached):
`. l:l Motor Vehicle
`. LE General Negligence
`L_._l
`Intentional Tort
`
`.
`
`Products Liability
`I Premises Liability
`i
`Ln} Other (specify):
`
`11. Plaintiff has suffered
`wage loss
`
` acumen???
`
`loss of use ofproperty
`— _§ hospital and medical expenses
`general damage
`property damage
`g loss of earning capacity
`.llJ otherdamage(specify): Loss of consortium suffered by KACI K. MERLO, wife of
`NICHOLAS R. MERLO
`
`12.
`
`, The damages claimed for wrongful death and the relationships of plaintiffto the deceased are
`.
`a. Lmj
`listed in Attachment 12.
`b. 3N“! as follows:
`
`13. The relief sought in this complaint is within the jurisdiction of this court.
`
`14. Plaintiff prays forjudgment for costs of suit; for such relief as is fair. just. and equitable; and for
`a.
`(1)
`'43:} compensatory damages
`(2)
`[:41 punitIVe damages
`The amount of damages is (in cases impersonal injury or Wrongful death, you must check (1)):
`(1) B: according to prool
`(2) C: in the amountof:$
`
`15. if: The paragraphs oithis complaint alleged on information and belief are as follows (specify paragraph numbers):
`Checked paragraphs l~l4 and General Negligence (Medical Malpractice) Cause
`of Action.
`
`Date: August 13, 2018
`
`Daniel R. Baradat
`__________~_‘_~____________________.
`
`
`
`,
`
`.
`
`

`

`SHORTTITLE: MERLO V. PRISTINE
`
`PLD-PI-001(2)
`
`CASE NUMBER:
`
`CAUSE OF ACTION—General Negligence
`FIRST
`(numben'
`ATTACHMENT TO fijCommmm t lCnms-Commmm
`
`‘
`
`Page 4
`
`(Use a separate cause of action fonn for each cause of action.)
`
`6N4. Pbmuflnmnwfi NICHOLAS R. MERLO, by and through his Conservator
`ad Litem, KACI K. MERLO and KACI K. MERLO Individually
`JOJODIA,
`dbgmfithemndmumamw: PRISTINE SURGERY CENTER,
`INC.,
`PRAHALAD B.
`M.D., SIMRANJIT SINGH BASSI, CRNA, AMERICAN AMBULANCE, BRINA PORTILLO,
`ASHLEY BOWMAN, ALLISON FREER,
`JEFFREY SCHNEIDER, and
`
`and Guardian
`
`
`EX]D0% 1
`
`lo20
`
`wasthe legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant
`nedheMWcmmedmedamagempbhfifi
`enamex March 14, 2018
`atmma: Pristine Surgery Center, Fresno, CA, and in an ambulance en
`route to Clovis Community Medical Center, Clovis, CA.
`(description of reasons for liability);
`.
`Defendants, and each of them, were physicians, surgical centers,
`I.
`hospitals, CRNAs, paramedics, EMTs, ambulance companies and/or health care
`providers, duly licensed to practice medicine,
`treat and transport patients in
`the State of California, each holding himself out
`to possess that degree of
`skill, ability and learning common to medical practitioners in the community.
`II.
`That on or about March 14, 2018, and at all times thereafter, Plaintiff,
`NICHOLAS R. MERLO, consulted with Defendants, and each of them,
`for the purpose
`of obtaining a diagnosis,
`treatment and tranSport for an injury, condition and
`illness, and employed said Defendants, and each of them,
`to care for and treat
`Plaintiff, and to do those things necessary and proper in said care,
`treatment
`and transport. That said Defendants, and each of them, undertook said
`employment and agreed to do all things reasonable, proper and necessary in
`connection therewith, and said Defendants, and each of them,
`thereafter entered
`into such employment,
`individually, and by and through their employers,
`employees, servants and agents.
`‘
`III.
`Pursuant
`to said agreement and on or about March 14, 2018, Plaintiff,
`NICHOLAS R. MERLO, was examined and underwent an endoscopy,
`intubation,
`eutic procedures,
`endants, and each of
`
`. That at all times mentioned herein, Defendants, and each of them, failed
`IV.
`to use reasonable care or skill common to medical, CRNA and ambulance
`practitioners in the community and further failed to use reasonabl
`diagnosis and treatment of said condition,
`illness and injury,
`e care in the
`each of said Defendants was acting as the agent of each other Defendant.
`V.
`Resultant from the negligence of Defendants, and each of them, Plaintiff,
`damages, and his wife, KACI K.
`MERLO, has suffered loss of consortium damages.
`
`

`

`EXHIBIT B
`
`EXHIBIT B
`
`

`

`SONJA M. DAHL, ESQ. (State Bar No. 130971); sdahl@dndmiawyers.com
`DONNELLY NELSON DEPOLO MURRAY & EFREMSKY
`E—FILED
`A Professional Corporation
`10/29/2018 3:44 PM
`201 North CiVic Drive, Suite 239
`Walnut Creek, CA 94596-3879
`Tel. NO. (925) 287-8181
`Fax No. (925) 287-8188
`
`FREE?CfiUNEYISSEFRbOeRpCu‘ltJ/RT
`
`.
`'
`Attorneys for Defendants -
`AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY BOWMAN, ALLISON FREER
`
` VANESSA L. EFREMSKY, ESQ. (State Bar No. 195973); vefremsky@dndmlawyers.com
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY OF FRESNO
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`1'8
`
`17
`
`.18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`NICHOLAS R. MERLO, by and through his
`Conservator and Guardian ad Litem, KACI K.
`MERLO, and KACI K. MERLO, individually,
`
`Plaintiffs,
`
`VS.
`
`Case No. 18CECG03026
`.
`ANSWER OF DEFENDANTS
`AMERICAN AMBULANCE, BRINA PORTILLO,
`ASHLEY BOWMAN, and ALLISON FREER
`TO PLAINTIFFS’ COMPLAINT
`I
`
`PRISTINE SURGERY CENTER, iNC.,
`PRAHALAD B. JOJODIA, M.D., SIMRANJIT
`SINGH BASSI, CRNA, AMERICAN
`AMBULANCE, BRINA PORTILLO, ASHLEY
`BOWMAN, ALLISON FREER, JEFFREY
`SCHNEIDER, and Does 1 to 20,
`
`Complaint Filed: August 13, 2018
`
`ASSIGNED FOR ALL PURPOSES TO:
`JUDGE JEFFREY Y. HAMILTON
`
`
`' Defendants.
`
`COME NOW defendants, AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY
`
`BOWMAN, and ALLISON FREER, through their attorneys, and answering the unverified Complaint
`
`'of plaintiffs on file herein, admit, deny and allege'as follows:
`Answering the allegations of plaintiffs’ Complaint on file herein, these answering defendants
`
`deny each and every, all and singular, generally and specifically, the allegations contained in the
`
`Complaint, and each and every part thereof, andln this connection deny that plaintiffs, NICHOL;AS
`
`R. MERLO, by and through his Conservator and Guardian ad Litem, KACI K. MERLO, and KACI K.
`
`MERLO, individually, have been injured or damaged in any sum or sums, or at all, by reason of any
`
`
`
`
`
`
`
`
`
`Corporation
`
`
`
`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
`
`

`

`
`
`
`
`Corporation
`
`
`
`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
`
`
`
`10
`
`11
`
`12
`
`13
`
`14
`
`AS A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint,
`
`these answering defendants allege that the Complaint falls to state a cause of action.
`
`AS A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint,
`
`these answering” defendants allege that the Complaint herein does not state facts sufficient to
`
`constitute a cause of action in that the alleged cause of action is barred by the Statute of Limitations:
`
`California Code of Civil Procedure Sections 340.5 and 384.
`
`AS A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint for
`Damages, these answering defendants allege that if it should be found that there was negligence or
`
`other fault as alleged in plaintiffs’ Complaint or in connection with the subject matter of the
`
`Complaint. such negligence or other fault was that of the plaintiff and of persons, firms, corporations,
`
`or entities other than these answering defendants and comparatively reduces the percentage of any
`
`liability on the part of these answering defendants if it should be found that these answering
`
`defendants are negligent or liable as alleged in the Complaint, which these answering defendants
`
`have denied and do expressly deny.
`
`15
`
`1e
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`AS A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint, in
`
`the event these answering defendants are found to be-negligent or otherwise at fault, which is
`expressly herein denied, the liability of these answering defendants is limited by reason of California
`
`Civil Code Section 1431.2.
`
`AS A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint,
`
`these answering defendants allege that in the event these answering defendants are found liable,
`
`which these defendants deny and state merely for the purpose of this affirmative defense, these
`
`answering defendants may elect to introduce evidence of any amount paid or payable, if any, as a
`
`benefit to plaintiffs and claim credit pursuant to Civil Code Section 3333.1.
`
`AS A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE to the Complaint,
`
`these answering defendants allege that in the event these answering defendants are found to be
`
`liable, which these defendants deny and state merely for the purpose of this affirmative defense, the
`
`damages for non-economic losses shall not exceed the amount specified in Civil Code Section
`
`
`
`

`

`
`
`
`
`Corporation
`
`
`
`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
`
`
`
`10
`
`11
`
`1.2
`
`13
`
`14
`
`15
`
`1e
`
`
`
`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`AS A SEVENTH, SEPARATE AND DISTINCT AFFIRIV'IATIVE DEFENSE to the Complaint,
`
`these answering defendants allege that in the event these answering defendants are found liable,
`
`which these defendants deny and state merely for the purposes of this affirmative defense, these
`
`answering defendants may elect to have future damages, if in excess of the amount specified in
`
`Code of Civil Procedure Section 667.7, paid in full or in part as specified in Code of Civil Procedure
`Section 667.7.
`I
`
`AS AN EIGHTH, SEPARATE AND DISTINCT IAFFIRIVIATIVE DEFENSE to said Complaint,
`
`these answering defendants allege that at all times mentioned in plaintiff's Complaint these
`defendants were in good faith rendering emergency medical care to plaintiff as contemplated under
`
`California Health & Safety Code Sections 1799.102 et. seq., including but not limited to Sections
`
`1799.104, 17991108, and 1799.108. Accordingly, these defendants are wholly immunized from any
`
`civil liability to plaintiffs.
`
`WHEREFORE, these answering defendants pray that plaintiffs take nothing by reason of the
`
`Complaint on file herein, and these answering defendants be awarded costs of suit and such further
`
`relief as the Court may deem just and appropriate.
`
`Dated: 10/29/2018
`
`DONNELLY NELSON,DEP LO MURRAY & EFREMSKY
`
`Attorneys for Defendants
`AMERICAN AMBULANCE, BRINA PORTlLLO, ASHLEY
`BOWMAN, and ALLISON FREER
`
`
`
`
`
`
`
`SON A M. DAHL
`
`

`

`
`
`
`
`Corporation
`
`
`
`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
`
`PROOF OF SERVICE BY MAIL — C.O.P. §§1013IAI, 2015.5
`
`I declare under penalty of perjury that:
`
`I am a citizen ofthe United States and am'employed in the County of Contra Costa.
`
`I am
`
`over the age of eighteen years and not a party to the within action. My business address is
`
`201 North Civic Drive, Suite 239, Walnut Creek, CA 94596. On ,
`
`1 served the within ANSWER OF
`
`DEFENDANTS AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY BOWMAN, and
`
`ALLISON FREER TO PLAINTIFFS’ COMPLAINT on the parties in this action by placing a true copy
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`thereof, enclosed in a sealed envelope with postage thereon fully paid, in the United States mail at
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`Walnut Creek, California, addressed as follows:
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`Daniel R. Baradat, Esq.
`Baradat & Paboojian, LLP
`720 W. Alluvial Avenue
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`Fresno, CA 93711-5705
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`Counsel for Plaintiff
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`Executed on October 29, 2018 at Walnut Creek, California.
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`Allison R. Cook
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`EXHIBIT C
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`EXHIBIT C
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`VANESSA L. EFREMSKY, ESQ. (State Bar No. 195973); vefremsky@dndmlawyers.com
`DONNELLY NELSON DEPOLO MURRAY & EFREMSKY
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`A Professional Corporation
`201 North Civic Drive, Suite 239
`Walnut Creek, CA 94596
`Tel. No. (925) 287-8181
`Fax No. (925) 287—8188
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`Attorneys for Defendants
`AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY BOWMAN, ALLISON FREER
`and KATHERINE SCHNEIDER
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`SUPERIOR COURT OF THE STATE OF CALIFORNIA
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`COUNTY OF FRESNO
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`Case No. 1BCECG03026
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`RESPONSE TO REQUEST FOR
`PRODUCTION OF DOCUMENTS,
`RECORDS AND OTHER THINGS
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`NICHOLAS R. MERLO, by and through his
`Conservator and Guardian ad Litem, KACI K.
`MERLO, and KACI K. MERLO, individually,
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`Plaintiffs,
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`VS.
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`PRISTINE SURGERY CENTER, INC.,
`PRAHALAD B. JOJODIA, M.D., SIMRANJIT
`SINGH BASSI, CRNA, AMERICAN
`AMBULANCE, BRINA PORTILLO, ASHLEY
`BOWMAN, ALLISON FREER, JEFFREY
`SCHNEIDER, and Does 1 to 20,
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`Defendants.
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`PROPOUNDING PARTY:
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`Plaintiffs NICHOLAS R. MERLO AND KACI K. MERLO
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`RESPONDING PARTY:
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`Defendants AMERICAN AMBULANCE, BRINA PORTILLO, ASHLEY
`BOWMAN, ALLISON FREER AND KATHERINE SCHNEIDER
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`SET NUMBER:
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`ONE (1)
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`Pursuant to C.C.P. §§2031 .010 through 2031.320, defendants hereby provide the following
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`responses to plaintiffs' Request for Production of Documents
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`-lll‘li‘“
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`on
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`lit:v,,_.
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`General Obiections and Reservations
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`1. These responses are made on the basis of information presently available to and located by
`defendants upon reasonable diligent
`investigation and inquiry, and are made solely for
`purposes related to this proceeding. Each response contained herein, as well as each
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`materiality, propriety, admissibility,
`all of which objections and grounds are expressly
`reserved so that these may be made for purposes of trial.
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`"l3‘l‘ll"‘'
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`2. These defendants have not completed their investigation of facts related to this case, have
`not completed discovery, and have not completed preparation for trial. Thus, the responses
`provided at this time are made only on the basis of such information as is currently known to
`these defendants and are reasonably available. These responses should not be construed
`as a final statement of all of defendants' knowledge regarding a particular item or issue, and
`are made without prejudice to defendants' right to introduce additional evidence at the time of
`trial.
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`3. These defendants object to each and every request to the extent that these defendants may
`seek documents that are not within these defendants' possession, custody or control.
`Additionally, these defendants object to every request, and each of them, to the extent that
`they may require these defendants to conduct an investigation to obtain documents beyond
`defendants' own currently existing records, or from defendants' present personnel as unduly
`burdensome and oppressive.
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`4. No incidental or implied admissions are intended by any responses which may be made
`herein, or which may be made in the future.
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`5. These defendants object to each and every request to the extent that it requests documents
`protected from disclosure by contractual and/or statutory or common law privacy or
`confidentiality protections, or by including proprietary business and/or trade secret privileges.
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`legal analysis or
`6. To the extent that any request, or any part thereof, calls for information,
`reasoning, writings, documents, materials, communications or anything else protected from
`disclosure or discovery by the attorney—client and/or attorney work-product privileges, or any
`other privilege or doctrine, these defendants hereby object to the request or any part thereof,
`and will not supply information protected from discovery or disclosure by virtue of such
`doctrines or privileges.
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`7. These defendants object to each and every request generally to the extent that it may call for
`the disclosure of information that would invade the privacy of third persons who are not
`parties to this litigation. As such, the responses below do not include any documents which,
`if produced, could be construed as invading the privacy of third persons.
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`8. These defendants object to each and every request to the extent that it purports to require
`these defendants to conduct an investigation beyond defendants' records or those of any
`agent and/or employee to determine the identity and location of information, documents,
`writings, materials, or witnesses, on the grounds of expense, burden and oppression.
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`insofar as it seeks production of
`to each and every request
`9. These defendants object
`documents already provided by these defendants to plaintiffs in this action.
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`10. The foregoing objections apply to each and every numbered request and are incorporated by
`reference into each of the numbered responses set forth below.
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`Response to Request for Production of Documents
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`26 REQUEST FOR PRODUCTION NO. 1:
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`Any and all imaging studies performed on Plaintiff NICHOLAS R. MERLO, including the discs
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`RESPONSE TO REQUEST NO. 1:
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`Defendants are not the Custodian of Records for requested imaging nor do Defendants have
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`any imaging in their possession, custody or control.
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`REQUEST FOR PRODUCTION NO. 2:
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`Any and all medical records pertaining to NICHOLAS R. MERLO, including but not limited to
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`medical reports, doctors’ notes, nurses’ notes, respiratory therapists’ notes, surgical reports, full
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`111:learmy]:.
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`code records, consultations.
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`RESPONSE TO REQUEST NO. 2:
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`Objection. 'Said request is vague, ambiguous and overbroad. Without waiving said
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`objections, Defendants are not the Custodian of Records for medical records nor do Defendants
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`have any responsive documents in their possession, custody or control other than plaintiff’s
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`ambulance records from American Ambulance which are attached hereto.
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`REQUEST FOR PRODUCTION NO. 3:
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`Any and all WRITINGS that refer or relate to communications that YOU and/or anyone on
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`YOUR behalf had with NICHOLAS R. MERLO and/or anyone on his behalf from March 14, 2018 to
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`present.
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`RESPONSE TO REQUEST NO. 3:
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`Objection. Said request is vague, ambiguous and overbroad. Without waiving said
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`objections, Defendants do not have any responsive documents in their possession, custody or
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`control other than plaintiff’s ambulance records from American Ambulance which are attached
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`hereto.
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`REQUEST FOR PRODUCTION NO. 4:
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`Any and all WRITINGS that refer or relate to communications that YOU and/or anyone on
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`YOUR behalf had with any HEALTH CARE PROVIDER pertaining to NICHOLAS R. MERLO.
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`RESPONSE TO REQUEST NO. 4:
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`Objection. Said request is vague, ambiguous and overbroad. Without waiving said
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`objections, Defendants do not have any responsive documents in their possession, custody or
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`“I111111
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`1111_...11j1.1!,1.1
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`hereto.
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`REQUEST FOR PRODUCTION NO. 5:
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`A complete copy, including declarations page, of all policies of insurance providing coverage
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`to YOU for the claims made by Plaintiffs in their Complaint.
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`RESPONSE TO REQUEST NO. 5:
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`ObjectionuSaid request vague, ambiguous, overbroad and calls for a legal conclusion.
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`Furthermore, said request is not reasonably calculated to lead to the discovery of admissible
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`evidence. Without waiving said objections, Defendants provide a copy of the Declarations page
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`hereto.
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`REQUEST FOR PRODUCTION NO. 6:
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`Any and all
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`investigative reports concerning Plaintiff, NICHOLAS R. MERLO, and which
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`relate to the INCIDENT.
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`RESPONSE TO REQUEST NO. 6:
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`Objection. Said request is vague, ambiguous, and overbroad as to investigative reports and
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`incident. Furthermore, as phrased such request may violate Quality Assurance, Peer Review and
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`Evidence Code §1157. Furthermore, said request is not reasonably calculated to lead to the
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`discovery of admissible evidence. Without waiving said objections, Defendants do not have any
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`non-privileged responsive documents in their possession other than those which may be contained
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`within plaintiff’s ambulance records from American Ambulance which are attached hereto.
`REQUEST FOR PRODUCTION NO. 7:
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`Any and all WRITINGS that refer or relate to communications that YOU and/or anyone on
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`YOUR behalf had with the Medical Board of California and/or anyone on its behalf pertaining to
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`NICHOLAS R. MERLO.
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`RESPONSE TO REQUEST NO. 7:
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`Objection. Said request is vague, ambiguous, and overbroad. Furthermore, as phrased such
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`request may call for production of information protected from discovery by the attorney-client
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`privilege, the attorney work product doctrine, and the Patient Safety and Quality Improvement Act of
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`lil‘ll‘“
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`calculated to lead to the discovery of admissible evidence. Without waiving said objections,
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`OJNO'JO‘IAU)
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`REQUEST FOR PRODUCTION NO. 8:
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`Please produce any and all WRITINGS that YOU contend support YOUR denial of the
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`allegations in Plaintiffs’ Complaint.
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`RESPONSE TO REQUEST NO. 8:
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`Objection. Said request is vague, ambiguous, and overbroad. Furthermore, as phrased it
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`may call for production of information protected from discovery by the attorney-client privilege and
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`the attorney work product doctrine.
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`In addition, it calls for a legal conclusion and is objected to on
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`N Defendants do not have any non-privileged responsive documents in their possession.
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`the grounds that it is also requests the disclosure of irrelevant expert opinions of a non—disclosed
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`expert witness.
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`(County of Los Angeles v. Martinez (1990) 224 Cal.App.3d 1446.)
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`12 REQUEST FOR PRODUCTION NO. 9:
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`Please produce any and all WRITINGS that YOU contend support YOUR affirmative
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`defenses set forth in YOUR Answer to Complaint.
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`15 RESPONSE TO REQUEST NO. 9:
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`Objection. Said request is vague, ambiguous, and overbroad. Furthermore, as phrased as
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`phrased it may call for production of information protected from discovery by the attorney~client
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`privilege and the attorney work product doctrine.
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`In addition, as phrased such request calls for a
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`legal conclusion and is objected to on the grounds that it
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`is requests the disclosure of irrelevant
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`expert opinions of a non-disclosed expert witness.
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`(County of Los Ange/es v. Martinez (1990) 224
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`21 Cal.App.3d 1446.)
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`22 REQUEST FOR PRODUCTION NO. 10:
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`Any and all reports made by any person concerning the INCIDENT.
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`24 RESPONSE TO REQUEST NO. 10:
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`Objection. Said request is vague, ambiguous and overbroad as to incident. Furthermore, as
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`phrased as phrased it may call for production of information protected from discovery by the
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`attorney—client privilege and the attorney work product doctrine. Without waiving said objections,
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`control other than plaintiff’s ambulance records from American Ambulance which are attached
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`hereto.
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`Counsel’s signature below solely preserves objections, and is not offered as a signature of a
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`party, officer, or agent under Code of Civil Procedure section 2030.250(b) and/or section
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`1.5119“
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`twril'll‘l"
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`2031 .250(b) and/or section 2033.250(b).
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`Dated: 1/23/2019
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`DONNELLY NELSON DEPOLO MURRAY & EFREMSKY
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`Mf
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`VANESSA L.
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`' REMSKY
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`Attorneys for Defenda '
`E, BRINA PORTILLO, ASHLEY
`AMERICAN AMBULA
`BOWMAN, ALLISON FREER and KATHERINE
`SCHNEIDER
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`#0201th
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`Corporation
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`DONNELLYNELSONDEPOLOMURRAY&EFREMSKYAProfessional
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`PROOF OF SERVICE BY MAIL — C.C.P. §§1013IAI1 2015.5
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`I declare under penalty of perjury that:
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`I am a citizen of the United States, and am a resident or employed in the County of Contra
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`Costa. I am over the age of eighteen years and not a party to the within action. My business address
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`is 201 North Civic Drive, Suite 239, Walnut Creek, CA 94596.
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`On January 23, 2019 I served the within RESPONSE TO REQUEST FOR PRODUCTION
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`OF DOCUMENTS, RECORDS AND OTHER THINGS, SET ONE on the parties in this action by
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`placing a true copy thereof in a sealed envelope for collection and mailing, following our ordinary
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`business practices at Walnut Creek, California.
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`I am readily familiar with this business’ practices for
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`collecting and processing correspondence for mailing. On the same day that document(s) is placed
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`for collection and mailing,
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`it is deposited in the ordinary course of business with the United States
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`Postal Service, in a sealed envelope/package with postage fully prepaid, addressed as follows:
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`Daniel R. Baradat, Esq.
`Baradat & Paboojian, LLP
`720 W. Alluvial Avenue
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`Fresno, CA 93711-5705
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`Daniel L. Wainwright
`Michael F. Ball, Esq.
`McCormick, Barstow, Sheppard, Wayte &
`Carruth LLP
`7647 North Fresno Street
`Fresno, CA 93720
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`Robert C. Reback, Esq.
`Reback, MoAndrews & Blessy, LLP
`1230 Rosecrans Avenue, Suite 450
`Manhattan Beach, CA 90266
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`Counsel for Plaintiff
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`Counsel for Defs. Pristine Surgery Center,
`Inc. and Prahalad B. Jojodia, M.D.
`.
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`Counsel for Defendant Simranjit Singh
`Bassi, CRNA
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`Executed on January 23, 2019 at Walnut Creek, California.
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`"l[W
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`II:"-’I‘l7:-‘v‘i(vvf‘Il'f-.
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`—
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`i
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`Cheryl L. Burks
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`600-10779NLE/474228.doc
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`2911 E. Tulare
`Fresno, C