2011-00113865-CU-PO

Diannia L. Hadley vs. Kiuimars R. Hekmat

Nature of Proceeding:   Hearing on Demurrer to First Amended Complaint

Filed By:  Salenko, Bruce E.

Defendant Radiological Associates of Sacramento Medical Group Inc.’s Demurrer to
the 1st amended Complaint is unopposed, taken as a concession to the merits, and is
sustained without leave to amend for failure to state facts sufficient to constitute a              cause of action.

The Demurrer was originally brought by defendant Eileen McCloskey.  Eileen
McCloskey was dismissed with prejudice on April 29, 2014.

The Court previously granted defendant’s motion for judgment on the pleadings as to
the vicarious liability claim, with leave to amend, based on counsel’s statements at oral
argument that the plaintiff could allege that the battery took place during a medical
exam and was “part of the exam.”

The FAC contains the following additional allegations after alleging improper sexual
conduct:

“When Plaintiff became upset with Defendant’s sexual advances. Defendant Kiumars
Hemat lifted Plaintiffs left arm in the course of conducting a physical examination of
Plaintiff s kidneys, but done with excessive force, karate chopped Plaintiff in the left rib
cage causing injury to Plaintiffs person, including fractures of the left 9th rib and left
l0th rib, and Defendant lifted Plaintiffs right arm in the course
of conducting a physical examination of Plaintiff s kidneys, but done with excessive
force, karate chopped Plaintiff in the right rib cage causing injury to Plaintiffs person.

Plaintiff is informed and believes and thereon alleges that Defendant Kiumars
Hekmat’s “physical examination of Plaintiff s kidneys” (karate chops as alleged herein)
is known as the percussion method of kidney examination to access for kidney
nephroptosis (that is, floating kidney). Thus Defendant Kiumars Hekmat’s excessive
force karate chops to Plaintiffs left & right rib cages were committed within the course
and scope of a physical examination [of] Plaintiffs kidneys and  therefore within the
course and scope of Defendant Kiumars Helmat’s employment with RAS Medical
Group.  (FAC ¶¶ 8-9)

Defendant contends that the above language describes acts that are as a matter of
law outside the scope of employment.   Plaintiff does not dispute defendant’s
statement in the moving papers that “A karate chop is not within the course and scope
of employment of a urologist or a urology exam.”    The court finds that the allegations
that the conduct occurred during a medical exam are overly conclusory.

The court construes the lack of opposition as a concession to the merits that the
alleged acts of Dr. Hekmat fall outside the course and scope of employment.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.

Item  3     2011-00113865-CU-PO

Diannia L. Hadley vs. Kiuimars R. Hekmat

Nature of Proceeding:   Motion to Strike First Amended Complaint

Filed By:  Salenko, Bruce E.

Defendant Radiological Associates of Sacramento Medical Group’s Motion to Strike
portions of the First Amended Complaint is unopposed and is granted.             The Court dismissed all claims against moving party for direct negligence on statute of
limitations grounds.  The portions of the FAC sought to be stricken concern only
alleged direct liability for negligent hiring, supervision, etc.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.