IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 John H. Gomez ( Vanessa Ruggles (01 Broadway, Suite 0 San Diego, California 1 Telephone: ( -0/Fax: ( - Attorneys for Plaintiff LAURA SEEFELD, vs. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO Plaintiff, AMERICAN LASER CENTERS OF CALIFORNIA, INC., a California corporation; CYNOSURE, INC., a Delaware corporation; ROBIN AUFHAMMER, an individual; and DOES 1-0 inclusive, Defendants. Case No CU-PO-CTL PLAINTIFF LAURA SEEFELD S POINTS AND AUTHORITIES IN SUPPORT OF HER OPPOSITION TO DEFENDANTS MOTION TO STRIKE PUNITIVE DAMAGES Judge: Hon. Jeffrey B. Barton Dept: C- Hearing Date: April, 00 Time: :00 a.m. Complaint Filed: December, 00 Plaintiff Laura Seefeld respectfully submits the following points and authorities in support of her Opposition to Defendants American Laser Center and Robin Aufhammer s Motion to Strike. I. INTRODUCTION Plaintiff s complaint arises out of Defendant American Laser Centers (ALC knowing use of defective equipment to perform a cosmetic laser procedure at its unlicensed clinic. The allegations in Plaintiff s complaint support her request punitive damages because Defendant ALC is not a health care provider and Defendant Robin Aufhammer was not -1-

2 performing professional services. Plaintiff respectfully requests this Court deny Defendants Motion to Strike. II. STATEMENT OF FACTS On February, 00, Plaintiff Laura Seefeld went to Defendant American Laser Center s unlicensed La Jolla clinic for an Affirm laser treatment with the goal of minimizing minor acne scars and revitalizing her appearance before her wedding. Tragically, instead of a rejuvenated appearance, Plaintiff Seefeld left the clinic with painful third degree burns covering her face. Plaintiff brought this action for negligence, battery, and products liability, alleging that Defendant ALC and Defendant Robin Aufhammer negligently and/or intentionally performed a laser treatment on Plaintiff with a machine and/or laser tip they knew to be defective and would cause Plaintiff to suffer serious injuries. Further, Plaintiff alleged that she did not consent to this conduct that caused her to suffer severe burns. Finally, Plaintiff alleged she has required medical care, and has suffered wage loss, extreme pain, loss of enjoyment of life, permanent scarring, and disfigurement because of Defendants ALC and Aufhammer s conduct. III. LEGAL ANALYSIS A motion to strike punitive must be denied where Plaintiff has properly alleged sufficient facts to support her request for relief. (Code Civil Proc.,. A. Plaintiff s punitive damages request should not be stricken because Code of Civil Procedure section.1 does not apply to Defendants ALC and Aufhammer. Code of Civil Procedure section.1 requires a plaintiff to move for an order allowing a request for punitive damages against a licensed health care provider for the provision of professional services. Here, however, Defendant ALC is not a licensed health care provider, and Defendant Aufhammer, although a licensed nurse, was not providing professional services at the time of the cosmetic laser treatment. --

3 Defendant ALC is not a licensed health care provider. A claim for punitive damages is subject to section.1 only if the injury that is the basis for the claim was caused by conduct that was directly related to the rendition of professional services by a health care provider. (Central Pathology Service Medical Clinic, Inc. v. Superior Court ( Cal. th 1,. To determine the applicability of section.1, the test is whether negligence occurred in rendering services for which provider is licensed. (Williams v. Superior Court ( 0 Cal.App.th, - [emphasis added]; see also Civ. Code,., subd. (c(. A professional service by a health care provider within the purview of section.1 has been defined as a procedure that is inextricably identified with the health of humans. (Johnson v.superior Court (00 1 Cal.App.th, 1. Here, Defendant American Laser Centers is not a licensed health care provider. 1 In fact, it is only licensed by the Board of Barbering and Cosmetology. Because it is not licensed, Defendant ALC is not a health care provider, and section.1 does not apply. Moreover, the cosmetic laser procedure performed on Plaintiff Seefeld is not a procedure inextricably identified with the health of humans. The laser procedure Defendant ALC performed on Plaintiff necessarily was not within the scope of services for which it is licensed because it is not licensed. Nor do policy considerations aid Defendant ALC. MICRA reflects a strong public policy to contain the costs of malpractice insurance by controlling or redistributing liability for damages, thereby maximizing the availability of medical services to meet the state's health care needs. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital ( Cal.th 0,. Defendant ALC s business, providing cosmetic procedures, simply does 1 Plaintiff respectfully requests the Court take judicial notice under Evidence Code section (d of the records of the California Department of Public Health license list attached hereto as Exhibit 1. Plaintiff respectfully requests the Court take judicial notice under Evidence Code section (d of Defendant ALC s license through the California Board of Barbering and Cosmetology attached hereto as Exhibit. The legislature enacted section.1 for the same policy reasons as its enactment of MICRA. (Cryolife, Inc. v. Superior Court (00 0 Cal.App.th 1, 1. --

4 not merit the protections afforded to health care providers to ensure the availability of medical services. Defendant ALC asserts it is vicariously protected by section.1 through Defendant Aufhammer s status as a registered nurse. However, the cases cited by Defendants in support of this position are readily distinguishable. First, although Palmer v. Superior Court (00 Cal.App. th held that a professional medical corporation s liability under section.1 was derived from its licensed physicians, a prerequisite of that holding was that the physicians were shareholders in the corporation, and the corporation complied with the requirements for a professional medical corporation under the Business & Professions Code. (Id., at p.. In contrast, there is no indication here that Defendant ALC is a professional medical corporation. In the second case cited by Defendants, the appellate court expressly noted the jury s verdict against the employing entity was based entirely on respondeat superior. (Lathrop v. Healthcare Partners Medical Group (00 1 Cal.App. th 1, 1-. Here, however, Defendant ALC s negligence is not only based on respondeat superior, but also on its own direct negligence. A more analogous case than those cited by Defendants held a residential care facility was not a health care provider despite its employment of a staff psychiatrist. (Kotler v. Alma Lodge ( Cal.App. th 1, 1. There, a facility licensed as a residential care facility negligently caused the death of two of its residents. (Id., at pp. -. MICRA did not apply to the facility because it was not a licensed health care facility or clinic. (Id., at pp. 1-. Likewise here, Defendant ALC is not a licensed health care provider, and cannot rely on Defendant Aufhammer s status as a registered nurse to escape liability for punitive damages due to its own negligence. Therefore, Defendant ALC is not entitled to the protections of section.1.. Defendant Aufhammer was not performing professional services. Although Defendant Aufhammer is a registered nurse, the cosmetic laser procedure --

5 performed on Plaintiff Seefeld is not inextricably identified with the health of humans and is not a professional service within the ambit of section.1. There is a dearth of California authority regarding whether cosmetic laser procedures qualify as professional services under MICRA. However, one well-reasoned case from Indiana, which appears to be the only on-point authority, held that its medical malpractice act does not encompass cosmetic laser procedures. The court there held that cosmetic laser hair removal treatment was not health care. (Ob-Gyn Associates of Northern Indiana v. Ransbottom (Ind. 00 N.E.d. Even though the treatment was rendered by a registered nurse at a medical clinic, the procedure was cosmetic, was not recommended or supervised by a physician, and the plaintiff could have received same treatment at other nonhealth care facilities. (Id., at pp. -0. Similarly, here, although a Defendant Aufhammer, a registered nurse, performed Plaintiff s laser treatment, the procedure was merely cosmetic and no physician had recommended the procedure to Plaintiff. Significantly, no physician supervised the procedure. Finally, in contrast to Ob-Gyn Associates, and as explained above, Defendant Aufhammer performed the procedure in a non-licensed, non-health care facility. Consequently, Defendant Aufhammer s acts do not constitute medical negligence, but rather ordinary negligence, and section.1 does not apply. B. Plaintiff s claim for Negligence should not be stricken. What is necessary to state a cause of action are the facts warranting legal relief, and not whether a plaintiff has provided apt, inapt, or no labels or titles for causes of action. (Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. (00 1 Cal.App.th,. An action cannot be defeated merely because it is not properly named. (Porten v. University of San Francisco ( Cal.App.d,. Defendants allege that Plaintiff s claim for negligence should be stricken because, according to Defendants, Plaintiff is actually alleging medical negligence. But as Defendants correctly point out in their demurrer, a claim for ordinary versus medical negligence does not affect the fundamental elements of the cause of action. Plaintiff s label is irrelevant as --

6 long as she properly states facts warranting relief. IV. CONCLUSION Based upon the foregoing, Defendants Motion to Strike should be denied. Alternatively, if this Court should find merit in the Motion to Strike, Plaintiff requests that it be granted 1 without prejudice to Plaintiff s right to move for an order allowing an amended pleading that includes a claim for punitive damages to be filed, and/or with leave to amend Plaintiff s complaint Dated:April, 00 THE GOMEZ LAW FIRM By: John H. Gomez Vanessa Ruggles Attorneys for Plaintiff --

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