2011-00113865-CU-PO

Diannia L. Hadley vs. Kiuimars R. Hekmat

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Radiological

Filed By: Salenko, Bruce E.

Defendant Radiological Associates’ Motion for Summary Judgment on the Complaint is
dropped from calendar as moot.

The Motion for Summary Judgment/Adjudication addresses the Complaint. On
February 14, 2014, plaintiff filed an Amended Complaint after the court granted leave
to amend at the hearing on the motion for judgment on the pleadings. (See Minute
Order January 24, 2014.) The defendants thereafter filed a demurrer and motion to
strike as to the Amended Complaint, set for hearing on May 30, 2014.

The parties were given leave to file further briefing to address the status of the motions
for summary judgment/adjudication as to the Complaint given the fact that an
Amended Complaint was filed. The Amended Complaint includes the new allegations
that the actions of Dr. Hekmat in karate chopping plaintiff’s kidneys occurred during a
kidney exam. This allegation significantly expands the scope of the pleadings as to
the vicarious liability claims against the defendants.

On March 28, 2014 plaintiff filed a 2nd amended complaint, without leave of court.
The clerk inadvertently filed this pleading even though no leave to amend had been
granted. The propriety of this amended complaint is not before the court at this time
but may be addressed at the time of the hearing on the demurrer to the 1st amended
complaint.

Defendants’ supplemental brief argues that the Court should rule on the motion for
summary judgment as to the Complaint on the ground that the plaintiff’s additional allegations in the Amended Complaint regarding Dr. Hekmat’s karate chops to
plaintiff’s ribs during a medical exam are sham pleadings made only in an attempt to
establish vicarious liability for acts within Dr. Hekmat’s scope of employment.

In ruling on a motion for summary judgment, the Court first identifies the issues framed
by the pleadings. The pleadings define the scope of the issues on a motion for
summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231
Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary
adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron
(2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in
opposition to the motion must be addressed to the claims and defenses raised in the
pleadings. An issue that is “within the general area of issues framed by the pleadings”
is properly before the court on a summary judgment or summary adjudication motion. (
Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.)

Because the Amended Complaint is the operative pleading that expanded the scope of
the pleadings, the Court may not rule on the motion for summary judgment as to the
Complaint because the Complaint is moot. State Compensation Insurance Fund v
Superior Court (2010) 184 Cal.App.4th 1124, 1131

The cases relied on by defendants do not support their argument that the Court can
rule on a motion for summary judgment as to an Original Complaint after the Court
granted leave to amend to file an Amended Complaint that expands the scope of the
actions upon which vicarious liability is based. The sham pleading doctrine is
ordinarily determined on a motion to amend or a motion challenging the pleadings
such as a demurrer or motion for judgment on the pleadings. See Berman v Bromberg
(1997) 56 Cal.App.4th 936, 945-46.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

2011-00113865-CU-PO

Diannia L. Hadley vs. Kiuimars R. Hekmat

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Eileen McCloskey)

Filed By: Salenko, Bruce E.

Defendant Eileen McCloskey’s Motion for Summary Judgment on the Complaint is
dropped from calendar as moot.

The Motion for Summary Judgment/Adjudication addresses the Complaint. On
February 14, 2014, plaintiff filed an Amended Complaint after the court granted leave
to amend at the hearing on the motion for judgment on the pleadings. (See Minute
Order January 24, 2014.) The defendants thereafter filed a demurrer and motion to
strike as to the Amended Complaint, set for hearing on May 30, 2014.

The parties were given leave to amend to address the status of the motions for
summary judgment/adjudication given the fact that an Amended Complaint was filed.
The Amended Complaint includes the new allegations that the actions of Dr. Hekmat in
karate chopping plaintiff’s kidneys occurred during a kidney exam. This allegation significantly expands the scope of the pleadings as to the vicarious liability claims
against the defendants.

On March 28, 2014 plaintiff filed a 2nd amended complaint, without leave of court.
The clerk inadvertently filed this pleading even though no leave to amend had been
granted. The propriety of this amended complaint is not before the court at this time
but may be addressed at the time of the hearing on the demurrer to the 1st amended
complaint.

Defendants’ supplemental brief argues that the Court should rule on the motion for
summary judgment as to the Complaint on the ground that the plaintiff’s additional
allegations in the Amended Complaint regarding Dr. Hekmat’s karate chops to
plaintiff’s ribs during a medical exam are sham pleadings made only in an attempt to
establish vicarious liability for acts within Dr. Hekmat’s scope of employment.

In ruling on a motion for summary judgment, the Court first identifies the issues framed
by the pleadings. The pleadings define the scope of the issues on a motion for
summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231
Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary
adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron
(2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in
opposition to the motion must be addressed to the claims and defenses raised in the
pleadings. An issue that is “within the general area of issues framed by the pleadings”
is properly before the court on a summary judgment or summary adjudication motion. (
Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.)

Because the Amended Complaint is the operative pleading that expanded the scope of
the pleadings, the Court may not rule on the motion for summary judgment as to the
previous Complaint because the Complaint is moot. State Compensation Insurance
Fund v Superior Court (2010) 184 Cal.App.4th 1124, 1131. (See also Anmaco, Inc. v.
Bohlken (1993) 13 Cal.App.4th 891, 091 (“An amended complaint ‘supersedes the
original and furnishes the sole basis for the cause of action. [] The original complaint
is dropped out of the case and ceases to have any effect as a pleading …’”).)

The cases relied on by defendants do not support their argument that the Court can
rule on a motion for summary judgment as to an Original Complaint after the Court
granted leave to amend to file an Amended Complaint that expands the scope of the
actions upon which vicarious liability is based. The sham pleading doctrine is
ordinarily determined on a motion to amend or a motion challenging the pleadings
such as a demurrer or motion for judgment on the pleadings. See Berman v Bromberg
(1997) 56 Cal.App.4th 936, 945-46.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.