Case Number: BC648395 Hearing Date: June 04, 2018 Dept: 47

State of California v. Bruce E. Fishman, M.D.

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant Bruce E. Fishman, M.D., an individual, Bruce E. Fishman, M.D., FISC, Inc. and Family Urgent Care & Industrial Medical Clinic, Inc., a California medical professional corporation

RESPONDING PARTY(S): Plaintiffs State of California, the Counties of Los Angeles, Kern, San Bernardino, Ventura, Santa Barbara, the Cities of Los Angeles and Bakersfield, the School Districts of Los Angeles, McFarland, Visalia and Kern, the Health Care District of Tehachapi, ex al. Med-Legal Associates, Inc. and CLCI, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Qui tam action alleging that Defendant Bruce E. Fishman lied on his application (concealing a felony conviction) to serve as a qualified medical evaluator (“QME”) in connection with the examination of injured workers for purposes of their eligibility for workers’ compensation benefits. Defendants billed Plaintiffs for medical evaluation services Defendant Fishman unlawfully performed under the pretense of being a validly-appointed QME and collected public funds for such services.

Defendant Bruce E. Fishman, M.D., an individual, Bruce E. Fishman, M.D., FISC, Inc. and Family Urgent Care & Industrial Medical Clinic, Inc., a California medical professional corporation demur to the first amended complaint.

TENTATIVE RULING:

The hearing on Defendant Bruce E. Fishman, M.D., an individual, Bruce E. Fishman, M.D., FISC, Inc. and Family Urgent Care & Industrial Medical Clinic, Inc., a California medical professional corporation’s demurrer to the first amended complaint is placed OFF-CALENDAR.

Defendant is ordered to answer the first amended complaint within 10 days.

DISCUSSION:

Demurrer

Demonstrating a disregard of the Code of Civil Procedure and California Rules of Court, Defendant’s counsel initially failed to submit a meet and confer declaration as required by CCP § 430.41(a)(3), and filed a 19-page brief in excess of the 15-page limit set forth in CRC Rule 3.1113(d), without first obtaining leave of court (Rule 3.1113(e)). When and if the Court eventually addresses the demurrer on the merits, the argument presented at pages 16 – 19 will be disregarded.

Also, demonstrating a lack of understanding as to the function of demurrer, Defendant’s counsel (despite having been admitted to the California Bar in 1979) submits extrinsic evidence in the form of the 16-page Declaration of counsel Howard A. Kapp, which amazingly fails to refer to any meet and confer efforts. “The demurrer admits the facts pleaded in the complaint and raises the question whether those facts are sufficient to state a cause of action on any legal theory. . . . ‘The function of a demurrer is to test the sufficiency of the complaint alone and not the evidence or other extrinsic matters. [Citation.]’ (Citation omitted.)” Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1308-09. The Court will not consider anything set forth in the evidentiary Declaration of attorney Kapp, as it serves, in effect, to circumvent the 15-page limit by introducing additional argument.

On May 2, 2018, the hearing on Defendant Bruce E. Fishman, M.D., an individual, Bruce E. Fishman, M.D., FISC, Inc. and Family Urgent Care & Industrial Medical Clinic, Inc., a California medical professional corporation demurrer to the first amended complaint was continued to this date (June 4, 2018). Defendant was ordered to meet and confer and submit a declaration in accordance with CCP § 430.41(a)(3) by May 28, 2018.

As of this date, the Court has yet seen a meet and confer declaration as previously ordered. Accordingly, the demurrer is placed OFF-CALENDAR and Defendant is ordered to answer the first amended complaint within 10 days. Defendant may bring a motion for judgment on the pleadings, which also is subject to the 15-page limit, and a meet and confer requirement set forth in CCP § 439 (effective January 1, 2018).

If Defendant’s counsel had, in fact, submitted a proper meet and confer declaration on or before the May 28, 2018 deadline, the hearing on the demurrer will be continued to give the Court an opportunity to address the demurrer on the merits.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 4, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court